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PSC Post-Trial Brief (Phase One) [Doc 10458] 6-21-2013

PSC Post-Trial Brief (Phase One) [Doc 10458] 6-21-2013



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Published by OSDocs2012
The Plaintiffs' Steering Committee's Phase One Post-Trial Brief
The Plaintiffs' Steering Committee's Phase One Post-Trial Brief

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Published by: OSDocs2012 on Jun 26, 2013
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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANAIn re: Oil Spill by the Oil Rig“DEEPWATER HORIZON” in the Gulf of Mexico, on April 20, 2010These Pleadings apply to:
 All Cases
(Including Nos. 10-2771 and 10-4536)
Submitted by the Plaintiff Steering CommitteeOn Behalf of Plaintiffs and Claimants-in-LimitationFor the Phase One Limitation and Liability Trial
Plaintiffs and Claimants-in-Limitation, through Plaintiffs’ Co-Liaison Counsel, thePlaintiffs’ Steering Committee, and the PSC Phase One Trial Team, respectfully submit thefollowing Post-Trial Brief, in accordance with the Court’s Order of April 24, 2013 [Doc 9536],to address specific legal and factual issues raised by the Court and otherwise by the parties basedon the evidence admitted during the Phase One Limitation and Liability Trial:
Consistent with the Court’s Order, the Plaintiffs Steering Committee will also be submitting a P
jointly with the State of Alabama and the State of Louisiana. Plaintiffs respectfullyincorporate such P
in further support of the legal and factual issues addressed in this Post-TrialBrief.
Case 2:10-md-02179-CJB-SS Document 10458 Filed 06/21/13 Page 1 of 72
Page | i
Table of Contents . . . . . . . . . . iTable of Authorities . . . . . . . . . . iv
Overview of Legal Issues
The Ultimate Issues to be Addressed by the Court . . . . . 1General Discussion regarding “Gross Negligence” / “Wanton and Willful” / Etc. . 2General Observations regarding
 P&E Boat Rentals
. . . . . 4
Answers to Specific Legal Questions Posed by the Court
What is the standard for finding “gross negligence” or “willful misconduct”under the Clean Water Act (“CWA”), 33 U.S.C. § 1321(b)(7)(D),and the Oil Pollution Act of 1990 (“OPA”), 33 U.S.C. 2704(c)(1)(A)? . . 62.
What is the standard for a finding of punitive damages under generalmaritime law? Is this a different standard than under the CWA or OPA,and if so, how? . . . . . . . . . 103.
In order to find that a party acted with gross negligence [or willfulmisconduct or wanton or reckless disregard], is it necessary to find thatthere be at least one single act or omission that equates to gross negligence[etc], or can such a finding be based upon an accumulation or a series of negligent acts or omissions? . . . . . . . 134.
Can an act or omission that is not itself causal of the accident nevertheless be considered in determining whether a party engaged in conduct constitutinggross negligence [etc]? . . . . . . . . 145.
In order to find gross negligence [etc], is it sufficient if only employees onthe rig are guilty of such conduct, or is it necessary to find that this levelof conduct was attributable to shore-based or management-level employees? . 186.
Does compliance with MMS (or other applicable) regulations preclude afinding of gross negligence regardless of whether a defendant knew or shouldhave known that its conduct or equipment was unsafe, or violated acceptedengineering standards? . . . . . . . . 21
Case 2:10-md-02179-CJB-SS Document 10458 Filed 06/21/13 Page 2 of 72
Page | ii
Does the fact that a party acted in accordance with “industry standards” preclude a finding of gross negligence [etc]? . . . . . 7
Key Material Factual Questions Disputed by the Parties at Trial
There was a “dual command” structure on the DEEPWATER HORIZON,which violated the ISM Code. . . . . . . . 26There is no conflict between the ISM Code and the MODU Code. . . . 28Captain Kuchta was not adequately trained and otherwise qualified to serveas the Master of the DEEPWATER HORIZON. . . . . . 28Jimmy Harrell was not licensed to serve as the Person in Charge of theDEEPWATER HORIZON, or even the OIM. . . . . . 30The weekly drills and other training of the DEEPWATER HORIZON Crew didnot include EDS training. . . . . . . . . 31The deficiencies noted in the 2009 Rig Audit (and previously) were not closedout prior to the blowout and explosion. . . . . . . 31The battery in the Blue Pod was already dead (or at least too low to function) whenit was called upon to activate the BSR at “AMF Time”. . . . . 35The General Alarm on the DEEPWATER HORIZON did not sound before the first(or even the second) explosion. . . . . . . . 37An acoustic trigger is a reliable mechanism that could have been and shouldhave been added to the BOP . . . . . . . . 37When they knew that hydrocarbons had entered the riser, the Transocean Crewdiverted to the Mud-Gas Separator, and not overboard. . . . . 38OMS was applied differently, and later, to contractor-owned rigs in the Gulf. . 38There was, at the time of the blowout, no “bridging document” that identifiedand addressed the gaps between BP’s OMS and the Transocean SafetyManagement System with respect to the Macondo Well or theDEEPWATER HORIZON. . . . . . . . . 42
Case 2:10-md-02179-CJB-SS Document 10458 Filed 06/21/13 Page 3 of 72

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