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As oil gushed, BP quickly hired lawyers, scientists and experts to fight lawsuits

TALLAHASSEE — In the immediate aftermath of the Deepwater Horizon disaster, BP publicly touted its expert oil cleanup response, but it quietly girded for a legal fight that could soon embroil hundreds of attorneys, span five states and last more than a decade.

BP swiftly signed up experts who would otherwise work for plaintiffs, shopped for top-notch legal teams and presented volunteers, fishermen and potential workers with waivers, hoping they would sign away some of their right to sue. Recently, BP announced it would create a $20 billion victim-assistance fund, which could reduce court challenges.

But the lawsuit frenzy came anyway.

So far, an estimated 250 court claims may have been filed against BP. More come each day. Florida Gov. Charlie Crist has tapped Steve Yerrid — one of the so-called "dream team'' lawyers in Florida's landmark tobacco suit — to assemble a new legal crew to provide advice. Counties and cities are getting lawyered up as well.

Robert J. McKee, attorney with the Fort Lauderdale firm of Krupnick Campbell Malone, was surprised by how quickly BP hired scientists and laboratories specializing in the collection and analysis of air, sea, marsh and beach samples — evidence that's crucial to proving damages in pollution cases.

Five days after the April 20 blowout, McKee said, he tried to hire a scientist who has assisted him in an ongoing 16-year environmental lawsuit in Ecuador involving DuPont.

"It was too late. He had already been hired by the other side,'' McKee said. "If you aren't fast enough, you get beat to the punch.''

At the same time it was bolstering its legal team, BP America's chief operating officer for exploration and production, Doug Suttles, downplayed the flow rate of the oil leak, which had been discovered just the day before near the wreckage of the Deepwater Horizon rig.

"The rate we're seeing today is considerably lower, considerably lower than what was occurring when you saw the rig on fire,'' he said on NBC Nightly News.

Three days later, McKee mustered a team of scientists collecting samples on the Louisiana barrier islands. At the time, the law firm and its partners didn't even have clients. Now, Krupnick Campbell is working with seven other Gulf Coast firms that represent aggrieved businesses, fishermen and residents from the Texas-Louisiana border to Key West.

A BP spokesman said the company doesn't comment on lawsuits and "won't be giving running commentaries'' on the number of court actions it's facing.

• • •

In Florida, BP has hired Akerman Senterfitt, the state's largest law firm. Halliburton Energy Services, which pumped the cement casing into the well before it failed, has hired Broad & Cassel. Cameron International, which manufactured the failed blowout preventer, signed up Greenberg Traurig. All three firms are among the biggest political players in Florida's capital.

Transocean, owner of the Deepwater Horizon rig, has yet to announce the Florida firm it has hired.

Right after the explosion, Transocean persuaded some rig workers to sign waivers saying they weren't injured. Also in the early days after the spill, BP officials offered fishermen and prospective workers liability waivers. That prompted Florida Attorney General Bill McCollum to warn citizens: "Do not sign waivers.''

In contrast to some of its residents, the state of Florida wants to avoid lawsuits right now.

McCollum has devoted three full-time attorneys to manage the legal response and advise a state economic recovery task force. They're working with two former attorneys general, Bob Butterworth and Jim Smith, as well as Crist, a former attorney general who tapped Tampa lawyer Steve Yerrid to be his legal adviser.

Yerrid plans to assemble a team of pro-bono legal advisers, many of whom worked alongside him in the state's successful lawsuit against Big Tobacco in the 1990s, which earned the state $11.3 billion plus billions more in attorneys' fees.

One of the members of Yerrid's past and future legal teams, Fred Levin, has already filed a racketeering lawsuit against BP on behalf of Pensacola Beach condominium residents. Yerrid said the state has different issues than its private citizens and will hold its fire.

"Right now is not a time for lawsuits for the state,'' Yerrid said.

The grounds for the suits and potential suits run the gamut: federal pollution and environmental laws, general maritime law, international treaties, public-nuisance codes, and even state and federal racketeering laws. In Florida, fishermen can take advantage of a 2-week-old Florida Supreme Court ruling in a St. Petersburg crabber's lawsuit that expands the right to sue polluters under the Pollutant Discharge Prevention and Control Act.

The state has two main laws to help collect damages: the state pollutant act and the federal Oil Pollution Act.

The state law clearly specifies the amount of environmental damages it can receive. The Florida Department of Environmental Protection has been gathering samples that would be the basis for environmental challenges and fines.

The federal oil pollution law allows governments to collect lost tax revenues and the cost of increased governmental services as a result of a spill. Crist's budget and policy chief, Jerry McDaniel, and state economists are gathering data to show the effects the spill will have on the Florida's economy and collections of sales, property and hotel-room taxes.

Brian O'Neill, a lead attorney in the 1989 Exxon Valdez oil spill case, said the Gulf Coast states and residents should realize it will take years to clean the waters, the marshes and the beaches. Three years after the Alaska spill, salmon stocks started to return, he said, but the herring population was "exterminated'' in Prince William Sound.

Exxon spent $2 billion and cleaned up just 8 percent of the oil, he said. And the oil never left.

"You're going to have to wait years to figure out what happened and what is happening,'' O'Neill said. "The oil goes where you don't expect it. You will clean a beach and the oil will just come back in a few months or a year. The beaches could be oiled and oiled again.''

And the fight against the oil company could take decades.

"Exxon has shown you can stiff those you hurt and tie them up in court for 21 years and nothing bad happens to you,'' he said.

"You hope BP won't do that.''

• • •

St. Petersburg crabber Howard Curd is worried. His blue- and stone-crab fishing grounds in Tampa Bay were damaged when a phosphate freighter and two fuel barges collided near the Skyway Bridge, leading to $50 million in damages. The case was finally settled in 2004, just before Hurricane Frances blew out a retaining wall at a phosphate pit that spewed acidic water into the bay and killed off blue crabs and stone crabs, Curd said.

The fertilizer company, Mosaic, persuaded a trial court and an appeals court that Curd and other fishermen couldn't sue because they didn't own the seafood that was potentially killed, so they weren't technically damaged.

Finally, six years later, the Supreme Court on June 17 reversed lower-court opinions and said Curd and other fishermen could sue. Curd now has to prove damages in court. The ruling in his favor arrived just in time for Florida's 23,422 commercial and charter fishermen who could use the new ruling to press pollution claims against BP.

But the court was silent on others who depend on the water for the livelihood — such as seafood restaurants and fish houses. But they could likely sue under the new ruling as well, say Curd's attorneys, Andra Dreyfus and F. Wallace Pope.

Curd said crabbing in the bay is only bouncing back now, but the BP spill is already depressing seafood sales even though the oil is nowhere near the western coast of the peninsula.

He's prepared to sue BP, but harbors no illusions about facing a big corporation in court.

"They've got all the money, and all the attorneys and all the experts on retainer. It really doesn't cost them anything,'' Curd said. "It's like it's cheaper to pay their attorneys and fight in court then paying the money to people they hurt and doing the right thing.''

Marc Caputo can be reached at mcaputo@MiamiHerald.com.

As oil gushed, BP quickly hired lawyers, scientists and experts to fight lawsuits 07/04/10 [Last modified: Sunday, July 4, 2010 11:35pm]
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