"Toxic Torts"

Efficient Compensation of Class Members Suffering from the BP Oil Spill


By: Ashley Addo, Staff Member

On April20, 2010, our country experienced a devastating tragedy, the BP oil spill. This catastrophic event affected thousands of fishermen, business owners, real estate workers, property owners, shareholders, and more. The spill was a result of an explosion and fire at the Deepwater Horizon oil rig, which was located 130 miles southeast of New Orleans and approximately 50 miles from the Mississippi Delta.[1]The burning lasted for approximately two days before the oil rig tipped into the sea. The leak was finally capped on July 15, 2010, but the overwhelming damages remained.[2]Eleven platform workers were killed during the drilling process, and aquatic life was substantially affected. Consequently, these damages induced hundreds of class action lawsuits against BP and Transocean, the company that owned the oil rig.[3]

While the various classes assert different claims against BP and Transocean, one common claim exists amongst the class action complaints: BP was negligent in the design, maintenance, manufacture, and operation of the oil rig.[4]Accordingly, the plaintiffs in these classes desire recovery from the aforementioned defendants. The question is: with hundreds of class action suits pending against these companies, how quickly will these class members be compensated?

Rule 23of the Federal Rules of Civil Procedure governs the different ways in which a class can be certified.[5]One reason a class can be certified is if predominant issues preside amongst the class as a whole.[6]Once a class is certified, Rule 23(a)(5) permits the creation of subclasses amongst a larger class if needed.[7]In the recent Randleman v. Fidelity National Title Insurance Co. case, the court addressed a circuit split regarding bifurcation and the creation of subclasses in order to remedy a lack of predominance amongst a class.[8]The 4th, 5th, and 11th circuit’s state that a class should not be certified with subclasses if predominant issues do not exist amongst the class.[9]Conversely, the 2nd and 9th Circuits hold that subclasses are permissible, despite a lack of predominant issues amongst the class.[10]

If all of the circuits accepted the minority viewpoint towards class certification,the lawsuits against BP could be substantially expedited. There are hundreds of class action lawsuits pending against BP and Transocean and, although the classes are pleading distinct issues, the overarching commonality is BP’s negligence.[11]Several of these classes could be joined together, and multiple subclasses could be created amongst the class. For example, a class of BP shareholders,property owners, and real estate owners could be certified as one class, with multiple subclasses created amongst the class for the disparate claims.

In response to the oil spill, BP implemented many programs to avoid reoccurrence of the oil spill. Specifically, BP has acknowledged that they“ regret the damage caused to the environment and the livelihood of those in the communities affected” and that they are “putting in place measures to help ensure it does not happen again.”[12] While these strides are critical, BP’s ultimate goal should be compensation of the thousands of injured parties. The livelihood of these class members was radically altered by the oil spill; these individuals relied on the preservation of the Gulf of Mexico as a means of survival. BP has discussed its efforts in compensating individual claims,however, the Company has not publicly addressed how it will handle the hundreds of class action suits.[13]Consolidation of classes and the use of subclasses could reduce the amount of pleadings, hearings, discovery review, and trials that would accompany each suit. Additionally, this approach could reduce potential inconsistent judgments and appeals.

[1] Complaint at §2, Cajun Maid, LLC v. B.P., No.1:10-CV-176 HS0-JMR, (S.D.Miss. May 6, 2010).

[2]Id.

[3]Id.

[4]Id.

[5] fed. r.civ. 23.

[6] fed.r. civ. 23(b)(3).

[7] fed. r.civ. 23(a)(5).

[8]Randlemanv. Fidelty, 646 F.3d 347 (6th Cir. 2011).

[9]Id.at 356

[10] Id.

[11] Complaint, supra note 1, at §73

[12] Deepwater Horizon Accident, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036575&contentId=7067541

[13] Compensating the people and communitiesaffected, bp, http://www.bp.com/sectiongenericarticle800.do?categoryId=9036584&contentId=7067605

“What’s Up Doc?: A Critique of Veterinarian Experts Addressing Toxic Torts in the Environment Under the Daubert Threshold Inquiry”

This note appearing in JNREL Vol. 21 No.2 was written by former staff member Michael Marsch and confronts the Daubert threshold inquiry in the context of toxic torts that affect farmers' livestock. Staff member Derek Leslie wrote the following abstract.


The Daubert threshold inquiry acts as the vehicle through which many courts address the principles behind the Federal Rule of Evidence 702, which requires that for expert testimony to be admitted, (1) the testimony must assist the trier of fact, and (2) the expert must be qualified to offer such testimony. The U.S. Supreme Court elaborated upon these principles by developing what is now known as the Daubert threshold inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry takes the shape of pre-trial motions in limine, where one party attempts to discredit and thus exclude the testimony of the other side's expert witness. The court, when considering whether scientific evidence is to be admitted, considers "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-94).


Unfortunately, the Daubert threshold inquiry actually heightens the standard required by FRE 702. Where FRE 702 essentially required that the expert be qualified and that her methodology be reliable, the Daubert threshold inquiry's fourth prong, general acceptance, requires more: that the science behind the testimony has wider acceptance in the scientific community. While it may sound innocent enough, it runs contrary to the evolving nature of science, and effectively closes the door on innovative and novel scientific techniques and evidence, despite its use by a qualified expert using a reliable methodology. Moreover, the inquiry relies upon the judge, who is in no better position than the jury to weigh the merits of competing scientific assessments, to sort out these difficult scientific questions.


In the cases involving toxic torts affecting farmers' livestock, the Daubert threshold inquiry often invites the exclusion of veterinarian testimony, effectively precluding the plaintiff-farmer from making his case to the jury. In these cases, courts often apply the Daubert threshold inquiry with respect to the conclusions rather than the methodology of the expert witness. The central premise of the plaintiff-farmer's case, causation, is left unsupported without an expert witness to expound that theory.


Because the Daubert inquiry invites misapplication, and tempts judges to decide factual questions about causation, it should be abandoned. The alternative, obviously, is to rely on FRE 702 itself. If a qualified witness' testimony will assist the trier of fact in coming to a determination, the witness should be allowed to testify in front of a jury. Of course, this also permits the other party to present their own qualified expert witnesses with their own conclusions, leaving the jury to resolve the problem of which parties' expert came to the sounder scientific conclusion. Here, in the case of toxic torts affecting livestock, the plaintiff-farmer would at least be able to present his argument with respect to causation. This approach simplifies the issues surrounding expert testimony, and results, ultimately, in a fairer trial.