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District Judge Carl Barbier, who initially backed BP’s reading of the settlement, but now is reconsidering and realizing that the current interpretation might relegate most of the class members to just what the settlement was supposed to avoid — years of costly litigation.

NEW ORLEANS — Mark Mead and two buddies were fishing less than 20 miles away when the Deepwater Horizon oil rig burst into flames and lit up the night sky.

The trio rushed toward the floating inferno to help pull bodies out of the water. And as oil continued to gush out of BP’s broken well over the next four months, Mead helped again as a part of BP’s cleanup effort, picking up contaminated boom in the waters off Perdido Key at the Florida-Alabama line.

Despite his heroics, Mead now finds himself among an estimated 20,000 coastal residents and cleanup workers who are part of a medical damages settlement class, but would be blocked from settlement payments under a disputed reading of one phrase buried in an agreement more 1,000 pages long.

It’s an issue vexing U.S. District Judge Carl Barbier, who initially backed BP’s reading of the settlement, but now is reconsidering and realizing that the current interpretation might relegate most of the class members to just what the settlement was supposed to avoid — years of costly litigation.

With such a monumental decision hanging in the balance, WWL-TV interviewed Mead and a panel of six Florida residents who worked shore-side cleanup for BP after the spill, to find out how the situation is affecting them.

For Mead, it’s been traumatic. In 2010, he told CNN that he was suffering from serious anxiety from his experience in the chaos of the rig explosion. Since then, he’s been prescribed a host of other medication to deal with conditions he says he got from exposure to the oil and Corexit, a chemical dispersant BP applied to the oil to break it down into tiny droplets.

During his cleanup work on June 21, 2010, Mead fell into the sludgy oil- and chemical-laced Gulf waters. He was rushed to a BP facility on shore, where reports indicated he had “high exposure” to oil on most of his body and suffered a burning sensation on his skin.

Mark Mead shows the chronic dermatitis and lesions that appear on monthly. But the medical professional provided by BP wrote it off as minor and told him to “shower thoroughly and return to work.” Mead said that about a year later, he started having monthly outbreaks of painful, swollen lesions all over his back, arms and legs.

He was diagnosed with chronic dermatitis, one of the conditions that would qualify for the maximum $60,700 payment for a chronic condition under the settlement. But the disputed interpretation of BP’s medical claims settlement says Mead was diagnosed too late and must wait for his individual case to be litigated.

“BP said early on — the CEO — that they’d take care of us,” Mead said. “And they haven’t.”

Mead is also one of 11,000 people who filed medical claims with Claims Administrator Matt Garretson but have not been paid. More than eight months after Garretson was allowed to start payments, only 80 have been processed, according to reports filed by his office.
Mead’s lawyers and other plaintiffs’ attorneys were shocked this summer when Garretson announced a policy stating that claimants had to be diagnosed in the proper manner before April 16, 2012 — the date of the settlement agreement — to qualify for settlement payments. Garretson said the language of the agreement was clear and Barbier upheld that in July.

Arguments made in Barbier’s courtroom last week suggest that ruling could force the vast majority of medical settlement class members into the kind of protracted litigation that kept victims of the Exxon-Valdez spill waiting for more than 20 years. That has the judge concerned and reconsidering his July order.

BP contends that the diagnosis deadline that appears in the settlement’s definition for “later-manifested physical conditions” should also apply to conditions that claimants say showed up right away, such as eye damage, irritant-induced asthma and chronic dermatitis.

BP attorney Kevin Hodges told Barbier last week that anyone affected by the types of chronic conditions covered by the settlement surely would have seen a doctor before the April 16, 2012, deadline for diagnosis. But Barbier was skeptical, noting that most of the cleanup workers were likely uninsured and would not have an easy time paying for a doctor’s visit.

Several cleanup workers said they had a hard enough time affording a regular doctor’s visit, let alone the type of specific examinations that they later learned were required for a full diagnosis under the settlement.

“I hadn’t worked since 2010, and that had a lot to do with going to see a good doctor, because they want cash money up front and I don’t have no — I’m homeless, I don’t have nowhere to stay and family has been helping me all of this time. It’s just been bad,” said Donald Dumas of Pensacola, Fla.

Heather Lindsay, a Milton, Fla.-based attorney representing hundreds of cleanup workers, bristled at BP’s contention that the cutoff date was intended for chronic conditions from the start, to prevent claimants from getting fraudulent diagnoses after the terms of the settlement were made public.

“That’s absurd because that assumes that medical doctors are not going to be ethical and they’re going to provide whatever diagnosis we tell them,” Lindsay said. “Doesn’t everyone know how little doctors like lawyers?”

She said several factors made a diagnosis in the first two years difficult. In addition to the prohibitive cost for her clients, several of whom were homeless at the time of the spill, Lindsay said most thought they had something they were calling the “BP crud,” some kind of contagious cough workers assumed was just “going around.”

Also, many of them went to doctors right away but, like Dumas’ doctors at an indigent clinic, they did not have the expertise to recognize the specific diagnoses later outlined in the settlement. Lindsay acknowledged that once the terms of the settlement became known in 2012, she and other lawyers made sure their clients got the types of medical tests necessary to get the proper diagnoses.

Last week, WWL-TV interviewed a panel of six shore-based cleanup workers from Florida who were all diagnosed with chronic ocular damage after April 16, 2012, the disputed cutoff date in the settlement agreement.

They all said they were wholly unprepared for how to safely handle the oil and were assured by BP and its contractors that it had degraded to the point that it was no longer dangerous. They all said they attended a basic four-hour training session at the Pensacola Civic Center, but that it focused on hydration and other safety issues, not oil and chemical exposure. A longer, more intense course was reserved for people working out on the water, they said.

“We were not supposed to be in what they called the ‘Hot Zone,'” said Robert Trusler of Pensacola. “They would mark an arbitrary line on the beach. ‘Oil’s over here, it’s not over here.’ With our training we were not supposed to be in the ‘Hot Zone.’ But they did. After a couple days they said, ‘Get in there. Get in.'”

All six said they handled the mushy oil mats and tar balls that came ashore, and that sea spray sent oily water onto unprotected parts of their bodies. “We had (personal protective equipment), but it was inadequate,” said Robert Lee, also of Pensacola. “The agitation from the surf created a spray. The spray got past your glasses, got in your nose, got in your throat. It was terrible.”

And each said they went to see doctors, either while they were working or shortly after they were laid off in late 2010. Still, none of them got a diagnosis that qualified them for a chronic condition payment until after the 2012 deadline established in Garretson’s policy statement and now being reconsidered by Barbier.

“The gentleman who placed the deadline, he needs to come work the oil spill,” Lee said. “I know it’s too late now, but I think he needs that because he doesn’t understand what we’re going through.” Garretson contends that his policy is based on a plain reading of the settlement’s clear language and that he did not “interpret” anything. He told WWL-TV that it was doing a “disservice to class members” by suggesting that he “has some discretion regarding the mandates in the Medical Settlement Agreement.”

Christopher Causey, another Florida cleanup worker interviewed by the TV station, said he’s tired of the excuses. “There’s a thousand of us out here suffering. Release our medical benefits, please,” he said.

Even though the claims administrator for BP’s separate economic damage settlement posts updated statistics online daily, Garretson declined WWL’s request for a progress report, saying the station had to rely on the quarterly report he filed with the court a month ago. That report showed he had paid 79 claims through Aug. 8. But a weekly update later provided to WWL-TV indicates that in the two months since then, Garretson’s office has processed just one additional payment.

None of the 80 has been for chronic conditions, the update shows. Asked about the slow pace, Garretson said: “We recognize that some people are frustrated, and we empathize with people who are awaiting payment for claims that meet the requirements of the Medical Settlement Agreement, but following the process contained in that agreement and approved by the court is the only way to have a claim approved, and the only way to ensure that the process is as fair as it can be to everyone.”

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U.S. District Court Judge Carl Barbier ruled nearly two weeks ago that BP acted recklessly in the 2010 Deepwater Horizon rig accident and oil spill.

Back in school, did you ever fudge the spacing on a report to meet the teacher’s page-length requirement? Lawyers representing oil company BP tried something similar in a recent court filing connected to the company’s 2010 drilling rig accident and oil spill in the Gulf of Mexico.

U.S. District Court Judge Carl Barbier was not amused. In his ruling Monday, Barbier issued an order and then reminded BP’s lawyers that their brief was supposed to be limited to 35 pages, double-spaced:

“BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly six pages.”

“The Court should not have to waste its time policing such simple rules — particularly in a case as massive and complex as this. … Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here.”

University of Alabama School of Law Professor Montré Carodine clerked for Judge Barbier 15 years ago and tells NPR this may not be the first time BP’s lawyers have used such tactics. “The subtext seems to be Judge Barbier saying, ‘Look, every time I give you an inch you take a mile, and I’m tired of it,’ ” Carodine says. She concludes that BP is lucky because some judges would have stricken the entire brief for not following the rules.

Barbier’s legal dressing-down comes less than two weeks after he ruled that BP acted with gross negligence in the 2010 Deepwater Horizon rig accident and spill. BP is appealing that opinion, but if it stands, the decision could cost the oil giant billions of dollars in increased federal penalties. Just how much BP will have to pay is a question set for argument in Barbier’s New Orleans courtroom in January.

Source: Jeff Brady · NPR · Sep 16, 2014

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BP’s 2010 oil spill in the Gulf of Mexico disrupted business all along the coastline. Through the end of July 2014, the oil giant paid more than $13 billion to compensate people, businesses and communities affected. The company is disputing some of those claims in court battles that could drag on for years.

But there’s another group of people who lost money after the spill and never received compensation. That’s because their claims are tied to a six-month government moratorium on drilling put in place after the spill.

Among them is Patrick Roy of Patterson, La. He owns Coastal Rental Equipment, which rented equipment to the offshore oil and gas industry.

“This has been my dream since I can remember as a child — wanting to own my own business,” says Roy. After the spill, business was OK, but then the moratorium was enacted while the government overhauled offshore drilling regulations. That’s when his business collapsed. In the wake of the drilling ban, Patrick Roy had to shut down his business, selling equipment for a fraction of what he paid for it and incurring large amounts of debt. The claim he filed with BP was denied, and Roy can’t sue the government, either.

“It’s unfortunate that I have to shut it down — give up a dream because of something that happened offshore that I had no control over,” says Roy. He tried to file a claim with BP, like thousands of other business owners in the Gulf, but his did not qualify because the losses were tied to the moratorium.

In a statement to NPR, BP spokesman Geoff Morrell says, “BP should not be required to pay for alleged losses caused by the U.S. government’s independent decisions to enact a drilling moratorium and to delay issuing drilling permits. BP had no role whatsoever in either decision.”

With no customers and no money, Roy shut down his business. His equipment was sold to a competitor for a tenth of what he paid for it. Now he’s back working for someone else and faces a lifetime of paying off debts because he doesn’t want to declare bankruptcy.

“I have two beautiful little boys, and my wife ended [up] leaving me because of all this,” says Roy. “You know, business is one thing, but losing family, that hurts.”

New Orleans attorney James Garner estimates there are several thousand claims like Roy’s. His firm is representing people filing some of them. Garner says the drilling moratorium was a reasonable step for the government to take after the accident at BP’s Macondo well, and he draws a direct line from the spill to losses businesses suffered during the moratorium.

“BP cannot get away from the argument that without the Macondo explosion the moratorium doesn’t happen,” says Garner.

Chapman University law professor John Eastman is one legal expert who doesn’t think that argument will stand in court. He echoes the oil industry’s argument that the government’s drilling moratorium was unnecessary and hurt the region economically.

“That was the government’s action, not a result of the spill. And we ought to hold our government accountable for that, not people who had no responsibility for it,” says Eastman.

But those hurt by the drilling ban can’t sue the government. Eastman suggests they encourage Congress to pass a compensation plan. Meantime, the question of whether BP must pay for moratorium claims goes before a federal court in New Orleans next summer, five years after the spill.

Some small businesses can’t wait that long. “Frankly, big companies like BP depend on that,” says Montré D. Carodine, professor at The University of Alabama School of Law. She says a lot of times companies with deep pockets will intentionally drag legal proceedings out to wear down claimants.

Back in Louisiana, Patrick Roy says he’s still pursuing compensation from BP. But if it comes it will be too late for his business. Currently he’s trying to sell the building where his rental company was located, hoping he’ll get enough to pay off some of his creditors.

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JSTALETOVICH@MIAMIHERALD.COM

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Supreme Court: BP Must Pay Claims During Appeal

The U.S. Supreme Court says BP must continue paying claims from a fund established after the 2010 Gulf of Mexico oil spill while the company appeals terms of its settlement with some businesses.

The justices on Monday let stand without comment lower court refusals to halt payments while BP PLC appeals lower court rulings that businesses don’t have to prove they were directly harmed by the spill to collect money.

The 5th Circuit and a district court have ruled that BP must stand by its agreement to pay such business claims without requiring strict proof that the spill caused losses.

The order indicates that the high court is unlikely to hear BP’s appeal, said Loyola University law professor Blaine LeCesne, who is not involved in the case. BP contends that that the claims administrator is misinterpreting its agreement with many businesses.

“It’s obviously a major victory for the plaintiffs, who can now proceed with processing these business economic loss claims,” he said. “Given the several months interim before the Supreme Court rules on the appeal, likely many of these claims will have been processed and paid.”

Steve Herman and Jim Roy, lead attorneys for businesses and individuals who have filed claims against BP, said in a one-sentence statement that the order “will allow businesses to continue to receive the compensation they’re rightly entitled to according to the objective, transparent formulas agreed to by BP.”

BP will ask the high court to review whether it must pay claims without any apparent connection to the spill, company spokesman Geoff Morrell said in an emailed statement.

“The company continues to believe that the lifting of the injunction suspending the payment of business economic loss claims will allow hundreds of millions of dollars to be irretrievably scattered to claimants whose losses were not plausibly caused by the Deepwater Horizon accident,” he wrote.

At question are terms of BP’s settlement with businesses that do not have any connection to fisheries — one of eight groups of individuals and businesses set out in a complex March 2012 agreement to settle claims of losses from its 2010 spill.

The 5th U.S. Circuit Court of Appeals ruled 2-1 in March and 8-5 in May that the settlement’s terms were clear. District Judge Carl Barbier had made the same finding in December.

Judge Edith Brown Clement, the dissenter in March, wrote that whatever BP agreed to in its settlement, courts should make sure that payments go only to people who can prove the spill caused their losses.

When the company went to the 5th Circuit, LeCesne said, its arguments were based entirely on accounting principles. “It was only when Judge Clement threw out the question ‘What about causation?’ that the light went on in BP’s head — ‘She’s giving us another argument,'” LeCesne said.

The claims fund was set up after BP’s Macondo well off the Louisiana coast blew out in April 2010 and spewed oil into the Gulf for nearly three months.

BP estimated at first that claims would total about $7.8 billion. It later said the administrator was misinterpreting the settlement in ways that could add billions of dollars in bogus or inflated claims.

There has been no dispute that some Gulf Coast businesses, including tourism and fisheries interests, lost money because of oil on beaches or the closure of fishing waters after the spill.

However, BP argues the claims administrator wrongly interpreted the settlement to mean that businesses without any connection to fisheries must only show losses during and after the spill without proving a direct link. Examples cited by BP and Clement include a wireless telephone company that burned to the ground and an RV park that closed before the spill.

BP says it has paid out more than $12 billion in claims to individuals, businesses and government entities. A trial scheduled for January 2015 in New Orleans is part of the litigation that will determine how much the oil giant owes in federal Clean Water Act penalties.

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The Integrated Primary Care Capacity Project

The Integrated Primary Care Capacity Project is a $50 million program intended to provide integrated healthcare services to select communities in Alabama, Florida, Mississippi and Louisiana. Critics argue that the limited scope of the geographical area served, the time restrictions set and the amount budgeted for this project are all insufficient to provide adequate medical care to the more than 150,000 individuals in the region who are suffering from toxic exposure.

The Mental and Behavioral Capacity Project

The Mental and Behavioral Capacity Project is a $36 million program for the treatment of mental and behavioral issues resulting from the oil spill. It is unclear why these services have been separated from the Integrated Primary Care Capacity Project, especially since the neurological effect of toxic exposure and mental health problems have similar symptoms. Some have expressed concern that the project is being overseen by only five individuals.

The Community Health Workers’ Training Project

The Community Health Workers’ Training Project is a $4 million program aimed at training health workers and assisting existing health workers in Gulf Coast communities. It is unclear why this is also not part of The Integrated Primary Care Capacity Project.

The Environmental Health and Capacity Project

The goal of the Environmental Health and Capacity Project is to improve environmental medicine, educate and train local health professionals, and fund an “emerging scholars program.” It is unclear whether the “emerging scholars” are to treat those who require medical assistance at the present time or to simply study the affected region in preparation for the next colossal spill elsewhere.

Library and Administration

This part of the medical settlement creates a public e-library. The library shall include studies, reports and other information about the health risks connected with exposure to crude oil, chemical dispersants and other compounds associated with oil spills and cleanup efforts.

If you are a resident and/or a former cleanup worker in the Gulf region, be sure to take advantage of all options available to assist you in your recovery. This includes consulting with the attorneys at The Downs Law Firm to seek the maximum compensation available for your injuries.

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Three years after the spill, Coast Guard spokeswoman Lt. Cmdr. Natalie Murphy issued an official statement, admitting that the cleanup effort is a process, as opposed to a completed project.

Others would use a different term to describe the effort — “failed.”

The amount of oil recovered in the Gulf is still increasing

Despite what environmental groups are calling a premature declaration that the cleanup effort is complete, tourists and residents are witnessing oil washing up on the Alabama coastline every day. According to the Coast Guard’s estimates, 1 million gallons of the 200 million gallons of oil spilled is still out there. Tar balls and tar mats wash up on the shores of the Gulf region regularly, especially following the region’s frequent tropical storms.

The shrimp industry has been all but destroyed

The introduction of Corexit dispersant onto the spilled crude forced large amounts of the highly toxic compound to sink to the ocean floor, where it has decimated shrimp breeding grounds. Local fishermen claim that if BP had not been allowed to use Corexit or other chemicals, the spilled oil could have been cleaned up rather than dispersed, hidden or sunk. (However, the cost and the fines imposed on BP would have been much higher.) The region’s fishermen continue to discover mutated sea life, a clear indication that some repercussions of the spill cannot simply be erased.

Long-reaching environmental destruction

Coastal Protection and Restoration Authority director Garrett Graves laments the loss of 1,900 square miles of coastal flora and fauna. The destruction of cyprus and tupelo forest that protected the coastline from storm activity has resulted in ongoing restoration efforts that are costly and time-consuming.

Locals are still getting sick

Area residents continue to pour into the region’s overburdened healthcare facilities with reports of severe respiratory distress, skin irritation, dizziness, headaches, overall decline in health and evidence of acute emotional trauma.

As the Gulf region confronts the reality of ongoing damage and suffering from the spill, the question remains: What exactly has been cleaned up?

The Downs Law Group helps residents of the Gulf region who are suffering illness because of the oil spill collect monetary compensation.

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What happens when Corexit and crude oil fumes are inhaled

The Environmental Protection Agency (EPA) guidelines for application of chemical dispersants in oil cleanup efforts state clearly that those working with Corexit dispersants should be equipped with protective gear, including respiration tanks and masks. Corexit contains Volatile Organic Chemicals (VOCs)

Which are when inhaled penetrate lung tissue easily. Crude oil itself is a toxic substance and contains polycyclic aromatic hydrocarbons (PAHs), compounds that easily become airborne and following the 2010 Oil Spill, traveled inland via even the lightest of breezes towards populated coastal areas.

The combination of Corexit dispersants and crude oil creates a toxic vapor that is high in benzene — a known carcinogen — among other poisonous ingredients. Even in areas in which there was no perceivable toxic odor, Gulf residents were exposed to highly dangerous vapors. Within weeks of the spill, hundreds of cleanup workers and area residents began reporting to the area’s health services with complaints of respiratory illness, including:

• Persistent cough
• Asthma
• Pneumonia
• Chronic congestion and irritation of mucous membranes

It is still unclear what percentage of those suffering from chronic respiratory conditions including lung cancer, compromised lung performance and other non-reversible respiratory conditions, can attribute their illness to the Oil Spill and cleanup efforts. The EPA’s own literature indicates that health care providers should expect more respiratory problems to manifest in coming years among Gulf Coast residents and former cleanup workers.

Monetary compensation is available to Gulf residents and cleanup workers who have become ill as a result of the oil spill. The Downs Law Group is instrumental in helping ill residents get the money they need for their medical needs.

Corexit is a chemical dispersant that was sprayed onto the crude oil that spilled into the Gulf of Mexico following the 2010 Deepwater Horizon disaster. Corexit is a known toxin and carries warnings to that effect on its instructions for use. Three years after the spill, both cleanup workers and residents of the Gulf region continue to suffer the effects of exposure to the highly toxic mix of crude oil and Corexit. Among the most common health complications caused by this exposure is respiratory illness.

What happens when Corexit and crude oil fumes are inhaled

The Environmental Protection Agency (EPA) guidelines for application of chemical dispersants in oil cleanup efforts state clearly that those working with Corexit dispersants should be equipped with protective gear, including respiration tanks and masks. Corexit contains Volatile Organic Chemicals (VOCs)

Which are when inhaled penetrate lung tissue easily. Crude oil itself is a toxic substance and contains polycyclic aromatic hydrocarbons (PAHs), compounds that easily become airborne and following the 2010 Oil Spill, traveled inland via even the lightest of breezes towards populated coastal areas.

The combination of Corexit dispersants and crude oil creates a toxic vapor that is high in benzene — a known carcinogen — among other poisonous ingredients. Even in areas in which there was no perceivable toxic odor, Gulf residents were exposed to highly dangerous vapors. Within weeks of the spill, hundreds of cleanup workers and area residents began reporting to the area’s health services with complaints of respiratory illness, including:

• Persistent cough
• Asthma
• Pneumonia
• Chronic congestion and irritation of mucous membranes

It is still unclear what percentage of those suffering from chronic respiratory conditions including lung cancer, compromised lung performance and other non-reversible respiratory conditions, can attribute their illness to the Oil Spill and cleanup efforts. The EPA’s own literature indicates that health care providers should expect more respiratory problems to manifest in coming years among Gulf Coast residents and former cleanup workers.

Monetary compensation is available to Gulf residents and cleanup workers who have become ill as a result of the oil spill. The Downs Law Group is instrumental in helping ill residents get the money they need for their medical needs.

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A recent study released by the University Cancer and Diagnostic Center in Houston indicates that those exposed to the spill are exhibiting the same health issues that have been seen in other oil spill exposures.

Researchers examined and interviewed hundreds of Gulf residents and cleanup workers and compared their blood tests to a control group that was never exposed to the spill. The exposed group showed reduced platelet counts and reduced levels of blood urea nitrogen and creatinine, indicating increased risk for blood disease.

The exposed group also had elevated levels of enzymes present in the liver — alkaline phosphatase (ALP), aspartate amino transferase (AST) and alanine amino transferase (ALT). These enzymes are responsible for essential liver function, including:

• Detoxification — Carrying toxins out of the bloodstream for elimination
• Metabolism — Converting food, vitamins and light into energy for body functioning
• Biosynthesis — The body’s cells building proteins

When these basic functions are impaired, the body’s major organ systems begin to shut down. Dr. Mark A. D’Andrea, one of the lead investigators in the university study, stated that the alteration in enzyme levels leads to biochemical impairment and lesions in the body’s tissues. Dr. D’Andrea also reviews some of the BP Medical Benefits Settlement Claims, and will be evaluating some of our clients, among many others, in the affected Texas area.

Elevated liver enzymes can have serious health implications, including metastatic liver tumors, cirrhosis, inflammation of the pancreas, heart attack, gangrene and stroke. Common symptoms suffered by those exposed to the crude oil and dispersants include headache, dizziness, fatigue, respiratory infection and chest pains.

Residents of the Gulf region and cleanup workers who are ill as a result of exposure to crude oil and Corexit dispersant are eligible for monetary compensation from BP. Contact The Downs Law Group to find out if you qualify.

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