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In re Oil Spill By The Oil Rig

United States District Court, E.D. Louisiana

December 16, 2014

In re: Oil Spill by the Oil Rig

ORDER [REGARDING BPXP'S MOTION TO STRIKE THE EXPERT REPORTS OF WALTER H. CANTRELL AND RENEWED MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO UNRELATED PRIOR INCIDENTS (REC. DOC. 13475)]

CARL J. BARBIER, District Judge.

The Court held its initial status conference in the Penalty Phase on March 21, 2014.[1] In discussing the penalty factor of "history of prior violations, "[2] the Court questioned counsel for the United States regarding how many prior incidents it intended to introduce during the Penalty Phase trial. Counsel indicated four prior incidents which resulted in imposition of fines and/or criminal guilty pleas: 1) Endicott Island, Alaska; 2) Prudhoe Bay, Alaska; 3) Texas City, Texas; and 4) Grangemouth, Scotland. Rec. doc. 12809 at 16. The Court ruled:

I'm going to rule that the Government is limited to - my initial ruling is the Government's going to be allowed to use - to not go beyond the four that they've identified. And with respect to those four, ... I'm not going to decide now whether any of those four specifically are admissible or not. We'll deal with those in due course. They'll produce their expert reports, you'll get a chance to respond or you can file a motion later to strike any as not relevant for the reasons you've argued before and we'll look at each one individually.

Id. at 25-26.

* * *
I'm going to deny BP's motion to the extent that it seeks a ruling from the Court, that at this time, the Government's evidence on prior incidents has to be limited to BPXP violations of Section 311, with further stipulation that the Government is limited to coming forward with the four specific cases that they've identified, and BP will have a chance to - we'll have a chance to make the final decision before trial as to whether any or all of those are admissible or not.

Id. at 44. It is with that background that BPXP has filed the instant motion.[3]

Discovery on the four prior incidents has now been conducted and the U.S. has served the expert report of retired Rear Admiral Walter Cantrell ("Cantrell") as well as his reply report. Rec. doc. 13475-1 Exhibit B and Exhibit C. BPXP[4] asserts three grounds for moving to exclude evidence of the four prior incidents as well as the expert reports of Cantrell.

I. The Parties' Arguments

A. Re-Litigating Phase One Issues

BPXP first raises the issue that Cantrell's opinions regarding the prior incidents and how they relate to the Deepwater Horizon incident will present evidence that was considered and determined by the Court during Phase One. For example, Cantrell asserts that all five incidents resulted from "common failures" which is that BP's corporate leadership did not learn key lessons for safe and reliable operations from the prior incidents. BPXP refers to this as Cantrell's "failure to learn" theory. Cantrell states:

BP leadership failed to create a safety culture and implement an effective process safety system which led to violations of other basic process safety principles discussed below and ultimately the blowout at Macondo.

Cantrell report at 55.

BPXP points out that the Court, in its Phase One Order and Reasons, after noting "[t]here was much evidence and testimony at trial concerning process safety, " concluded that the BP process safety management system "may not have been perfect, but the evidence has not shown that it was defective or a cause of the blowout, explosion and fire." Rec. doc. ...


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