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BP Presents Expert Witnesses in Deepwater Spill Trial

Last week, we covered the DOJ’s use of expert witnesses in the final penalty phase of its environmental lawsuit against British Petroleum (BP), and as the trial progressed this week the oil giant began presenting its own experts on the environment and Gulf economy in an effort to minimize the damages the company owes for its role in the 2010 Deepwater disaster. The DOJ presented a variety of experts earlier in the trial who explained the negative impact on the Gulf environment and economy in support of the government’s argument that BP should pay nearly all of the maximum $13 billion in fines, but the company fired back this week with its own experts whose testimony suggests the fine should be drastically less than its potential.

BP Calls Environmental Impact Expert Witness

First to take the stand for BP was retired US Coast guard Captain Frank Paskewich, an expert witness who assisted the 2010 clean-up operation and now manages a New Orleans-based oil spill response team. Capt. Paskewich testified that BP was prepared with a spill response plan that allowed the company to “pull the trigger” on effective containment and clean-up efforts immediately after the Deepwater Horizon explosion that killed 11 men and created the worst offshore oil spill in American history. Paskewich noted that BP took the lead and became the responsible party in the wake of the spill, and testified that the company’s extensive efforts had a significant effect on containing the damage.

Citing government reports that BP had taken “safe and effective” measures to minimize the impact on the Gulf shoreline, Paskewich testified that the company had cleaned an estimated 1.2 million barrels, which amounted to 37{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the total oil spilled. According to Paskewich’s expert testimony, BP’s efforts to clean the spill by use of skimming boats and surface burning – which involves burning the oil on the surface of the water before it comes to shore – were unmatched by other entities working to mitigate the disaster and had a significant effect on minimizing the damage to the Gulf coast region.

Government Cross Examines BP Expert Witness

On cross examination, DOJ attorneys attacked Paskewich for currently working with BP in ongoing clean-up efforts, suggesting his expert testimony was biased in favor of a company that provided his organization with substantial funding. This became a relevant point when the Justice Department went on to have Paskewich admit that BP was not alone in its clean-up efforts, but was assisted by state governments, the U.S. Coast Guard, and other private companies. Suggesting that he overestimated the contribution of BP, the DOJ went on to question Paskewich about concerns over the long term impact of BP’s clean-up actions, particularly surface burning of oil that could release toxins into the air.

Throughout the questioning, BP’s expert witness stayed firm that his interaction with the company was not the basis for bias, but instead gave him the opportunity to interact directly with BP and assess the impact the company had after the Deepwater spill. Paskewich went on to acknowledge that there may be a cost to surface burning, but testified that BP made the right choice to pay that cost rather than let the oil reach the shoreline. Paskewich’s expert opinion is not the only one that the company will rely on, and as the trial progresses BP plans to call a number of other professionals to assist its cause.

BP Lines Up Expert Witnesses for Upcoming Testimony

According to reports on the progress of the BP penalty trial, the company plans on calling a number of expert witnesses specializing in environmental and economic impact of oil spills, including:

  • John Tunnell, Jr.: Mr. Tunnell is a marine biology expert witness working for the Harte Research Institute for Gulf of Mexico Studies at Texas A & M who will be called to present his opinion on the effect of the Deepwater spill on the fish and bird populations of the Gulf region. Tunnell Jr. is called in direct response to the selection of DOJ experts who testified to the grave effect that BP’s actions had on the Gulf environment.
  • Robert M Daines: Mr. Daines is a law professor at Stanford University who will explain the legal relationship between the research team that operated the oil drill and BP, its parent company. Daines’s legal expert testimony will likely provide an argument that distances BP from responsibility for financial damages under the law.
  • Loren Scott: Mr. Scott is an expert economist from Louisiana State University who will testify about the impact the spill had on the Gulf Coat economy. Like Tunnell, Scott is called as a direct response to testimony from DOJ experts who testified last week about the significant impact BP’s actions had on the Gulf region.

Attorneys for BP are arguing that the company should not be forced to pay the maximum potential fine of $13 billion because of a number of mitigating factors that have been, or will be, explained by expert witnesses during the trial.

DOJ Calls Expert Witnesses in BP Oil Spill Penalty Trial

Expert witnesses for the US government in its environmental lawsuit against British Petroleum (BP) took the stand this week in the debate over how much of the potential $13.7 billion in Clean Water Act penalties the oil giant should pay for its role in the 2010 Gulf oil spill. The ongoing legal dispute is reaching its final stages, and the US Justice Department is turning to environmental experts to convince Judge Carl Barbier to find the company legally responsible for the maximum fine.

BP Oil Spill Trial Enters Final Penalty Phase

The civil lawsuit filed by the Department of Justice against BP has been in process since 2013, and unfolded in three acts.  First, Judge Barbier found the company to be “grossly negligent” in the spill and mostly to blame for the disaster; second, the Judge determined that 3.19 million barrels of oil were spilled, and capped the potential damage at $13.7 billion ($4,300 / barrel); and now, in the third phase, Judge Barbier must determine whether or not BP should pay the full damage award.

The Justice Department, citing the earlier decisions that identified the company as “grossly negligent,” has argued that the company should pay $11.7 – $13.7 billion of the fine for its role in the spill.  DOJ Attorney Steve O’Rourke argued, “The penalty is going to have to be high enough for companies of this size to even notice, but not so high as to be ruinous to their operations,” and asked the court to impose a significant portion of the fine.  BP, in response, has pointed to lower oil prices and diminished value of BP production to argue that the amount the DOJ is requesting would be more than the company could afford at this time.  Further, BP has argued that it was heavily involved in the efforts to clean the spill which should mitigate damages it is legally responsible for.

DOJ Presents Environmental Expert Witnesses

In support of its claim that BP should face the maximum punishment available under the Clean Water Act, the DOJ has called expert witnesses to testify to the significant negative impact the spill had on the Gulf coast region.  Dr. Stanley Rice, a toxicology expert retired from the National Oceanic and Atmospheric Administration, took the stand to criticize a BP expert report on the level of toxicity in the Gulf waters following the spill.  According to Dr. Rice, the BP report did not focus on the surface waters or a deep-sea plume of oil and thus underestimated the negative effect of the disaster.

The DOJ also called Donald Boesch, an environmental expert witness from the University of Maryland Center for Environmental Science, who testified that the harm to sea-life and microbes could leave a lasting impact on the Gulf ecosystem and food chain.  Like Dr. Rice, Boesch argued that BP had underestimated the negative effect the spill had on the environment.

DOJ Calls Experts on Community Impact

In addition to its environmental experts, the DOJ called witnesses to explain the cost to the Gulf coast communities.  Diane E. Austin, an Anthropology director and professor at the University of Arizona, also took the stand to speak on the effect of the spill.  According to Austin, the spill not only had a significant negative effect on the environment, but also had a negative economic impact on the Gulf coast communities that many residents could not rebuild from.

Richard Clapp, an environmental health professor from Boston University, offered expert testimony supplementing Austin’s by noting that in addition to economic concerns, the Gulf coast residents are at risk for illness or other health effects.  Testifying that a number of serious health problems among responders and community members have already surfaced, Clapp warned that the issue could potentially worsen over time.

Across its expert witnesses, the DOJ attempted to construct a narrative that demonstrated BP’s negative impact on the environment and on the Gulf coast communities.  By painting the full picture of the aftermath of the Deepwater Oil Spill, the government argues that the company should be forced to pay near the maximum fine allowable under the Clean Water Act.  BP will present its own expert witnesses next week as the trial continues.  A ruling is not expected until April.