An Estimated 200,000 BP Oil Well Blowout Victims Were Exposed to Cancer-Causing Crude Oil and/or Dispersants
Although they will never have their day-in-court, multidistrict litigation ensures that many of these BP victims will be denied treatment and needlessly die.
“The long-term effects [of the BP oil well blowout] on the environment and fisheries may not be known for many years.” The Honorable Carl J. Barbier, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (Rec. Doc. 3830 at 31, August 26, 2011).
Gulf War Syndrome
Gulf War Syndrome, or “Gulf War illness,” is a serious illness that affects approximately 25 to 30 percent of the 700,000 U.S. veterans who served in the 1990 - 1991 Gulf War. These veterans’ illnesses went untreated and mostly unacknowledged until 2008, when a congressional report titled “Gulf War Illness and the Health of Gulf War Veterans” was published. This complex of multiple concurrent symptoms typically includes persistent memory and concentration problems, and other chronic abnormalities not explained by well-established diagnoses. The symptoms of Gulf War Syndrome, which are still being suffered by between 175,000 and 210,000 U.S. veterans, are identical to the symptoms being experienced by the estimated 200,000 BP oil well blowout victims who were exposed to crude oil and/or dispersants.
The approximately 200,000 U.S. veterans who continue to suffer from Gulf War Syndrome receive disability benefits from the United States Department of Veterans Affairs. The estimated 200,000 BP oil well blowout victims who are experiencing symptoms identical to Gulf War Syndrome should receive equivalent disability benefits from BP.
The chronic illnesses being experienced by the victims of the BP oil well blowout who were exposed to crude oil and/or dispersants will probably be with them for the rest of their lives. According to Dr. Michael Robichaux, a large percentage of BP oil well blowout patients have experienced what he refers to as “Multiple Endocrinopathies.” These disorders result in disruption of menses in women, impotence in many of the men, wide fluctuations of blood sugar, and disruption in the function of the adrenal glands.
Crude oil contains highly toxic chemicals such as benzene and n-hexane that can cause cancer, birth defects, and permanent nerve damage. Inhaling crude oil mist can cause chemical pneumonitis, a serious lung disease. Serious harm from crude oil that may not be recognized quickly includes liver, kidney, respiratory, reproductive, blood, immune, and nervous system damage.
An Environmental Toxic Tort
The BP oil well blowout is an environmental toxic tort. Accordingly, damages can only be calculated based on projections of the timing of the ecosystem’s recovery and associated economic losses. These complexities beg the question: Is it fair to place the burden on the victims of the BP oil well blowout to preserve the right to collect damages from BP that are not known to exist at the time of settlement?
A toxic tort is a tort claim that results from a plaintiff’s exposure to toxic substances as a result of a defendant’s actions. In traditional tort cases, personal injuries occur contemporaneously with the causing event, which allows the victim to recover reasonable expenses for past and future damages in a lump sum. In toxic tort cases, injuries are often not contemporaneous with exposure to the toxic substance and do not manifest until years after the exposure.
Public Policy Dictates That a Toxic Tort is a Strict Liability Tort
Typically, toxic tort laws impose strict liability on the responsible party whereby the claimant is entitled to recover not only the immediate costs, but also future damages that result from the incident. This liability is “analogous to negligence per se, but is not called negligence because a court makes determination judgment that the hazardous activity’s value to the community is sufficiently great that the mere participation in the activity is not to be stigmatized as wrongdoing….The activity is simply required to pay its own way…., but it does pay with full tort damages.” (VICTOR E. SCHWARTZ, ET AL., PROSSER, WADE AND SCHWARTZ’S TORTS 703-04 (Found. Press, 10th ed. 2000)).
Judge Barbier, in his Order and Reasons [As to Motions to Dismiss the B1 Master Complaint], states “Offshore drilling operations are not considered ultra-hazardous.” (Rec. Doc. 3830 at 28, Aug, 26, 2011). Although Judge Barbier believes “offshore drilling operations are not considered ultra-hazardous,” an unbiased, reasonable trier of fact would most certainly conclude that BP’s Macondo deep-water exploratory well drilling operations are considered ultra-hazardous and hold BP strictly liable.
Another unique characteristic of toxic tort is that often the exposures involved injure thousands of people. This is important in an administrative sense; it impacts the way toxic tort claims are handled. In order to avoid the potential legal complexities of litigating each claim separately, settlements are usually reached before litigation ensues. With so much money at stake in environmental disasters, the responsible party is often eager to settle claims to avoid adverse rulings that can render the responsible party insolvent, or in a worst-case scenario, destroy an entire industry.
While alternative dispute resolution may be essential to expeditiously and efficiently handling claims in mass toxic tort actions, the lack of judicial oversight raises concerns. In the absence of statutory guidelines, claimants lack many of the protections afforded under the conventional court system, rendering them vulnerable to unscrupulous settlement tactics that are likely to be used by the responsible party.
Those who have attacked the legitimacy of the BP oil well blowout victims’ compensation “fund” which was administered by Kenneth R. Feinberg have claimed that courts should refuse to enforce waiver provisions because of public policy, emphasizing the difference between justice in a tort context and in a contract context. Even when the contract is a full and genuine exercise of both parties’ freedom to contract, contract provisions may offend public policy, in which case courts can and should refuse to enforce them. The issue is not whether the parties dealt wrongfully with each other, but whether the contract is or should be forbidden because it damages the public good.
In evaluating the BP oil well blowout, one must consider that the unique characteristics of toxic tort render traditional-tort remedies inadequate to fully and justly compensate victims.
Historically, in environmental catastrophes, courts have refused to allow parties to enter into covenants not to sue without a reopening provision, because public policy dictates that a toxic tort is a strict liability tort where the claimant is entitled to recover not only the immediate removal costs, but also future damages that result from such an incident.
In the BP oil well blowout MDL, the lead counsel and BP negotiated a Medical Benefits Class Action Settlement Agreement which Judge Barbier approved on January 11, 2013. In order to limit BP’s liability, the MDL 2179 Court and lead counsel knowingly ignored the fact that public policy dictates that a toxic tort is a strict liability tort. Seventy-eight percent (78%) of Specified Physical Condition (“SPC”) claims submitted to Garretson received either a “Request for Additional Information” or a “Notice of Defect.” In the end, only 20% of claimants received any compensation. These claimants were forced to accept the lowest payment of $1,300 because they could no longer wait for the money to cover their medical expenses.
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