Stakes grow in Gulf spill litigation3
The federal government raised the stakes Friday in civil litigation over the 2010 Gulf oil spill, joining other plaintiffs in asking a judge to rule that workers’ refusal to testify amounted to unfavorable evidence against companies involved in the accident.
While such a finding only would apply in civil proceedings – failure to testify cannot be evidence against criminal defendants – the Justice Department‘s move raises the pressure on BP and others involved in settlement negotiations with the government, and a lawyer for one of the workers said he expects more criminal charges soon.
In its motion Friday, the government asked U.S. District Judge Carl Barbier of New Orleans to draw what is known as “adverse inference,” based on the refusal to testify by 13 employees of BP, Transocean or Halliburton.
BP owned the Macondo well that blew out on April 20, 2010, causing an explosion that killed 11 workers on the Deepwater Horizon drilling rig and triggering the nation’s worst offshore oil spill ever. Transocean owned the Deepwater Horizon, and Halliburton was the cement contractor on the Macondo well.
The three companies have sparred over blame for the disaster, and Transocean said in its own filing Friday that it also is seeking adverse inferences relating to failure of BP employees to testify.
Other parties in the case previously have sought adverse inference rulings against the workers, all of whom either formally invoked their Fifth Amendment rights against self-incrimination, or said they would if called to give depositions in the civil litigation.
None has been charged with a crime, but the government has said it is conducting a criminal investigation and has already charged one low-level employee who is not named in Friday’s filing.
“When there are parallel civil and criminal enforcement actions, it is not unusual for witnesses to assert their Fifth Amendments during depositions in the civil case,” said David Uhlmann, a former head of the Justice Department’s environmental-crimes section who now teaches law at the University of Michigan. “When that occurs, the government is entitled to ask the court to allow an adverse inference to be drawn in the civil proceeding.”
“You can never hold someone’s invocation of their Fifth Amendment rights against them in a criminal proceeding,” Uhlmann said.
The filings Friday gave no indication about what criminal charges the government may be contemplating, if any.
A Justice Department spokesman declined to comment on the court motions.
Names in the motion
Among those listed in Friday’s motion are BP senior drilling engineer Mark Hafle; BP drilling engineer Brian Morel; BP well site leader Robert Kaluza; Transocean Deepwater Horizon master Kurt Kuchta; and Transocean offshore installation manager Jimmy Harrell.
Kyle Schonekas, a lawyer for Kuchta, the Deepwater Horizon captain, said he has heard that the Justice Department is preparing more criminal charges, but he doesn’t believe his client will be a target.
“If he had been or was the subject of any investigation, I suspect I would have heard something by now,” Schonekas said. “Stranger things have happened. But I have never heard Capt. Kuchta is the subject of their affections.”
“The captain is really not involved in drilling activities,” he said.
Harrell’s attorney, Pat Fanning, emphasized that adverse inferences only apply in civil cases.
“We have not had any discussions with the federal government regarding Mr. Harrell in the criminal case for a very long time,” Fanning said. “Mr. Harrell has always maintained his innocence and continues to do so. We hope there is never any charge filed against him. But if there is, we intend to vigorously defend him.”
Kaluza’s attorney, Shaun Clarke, declined to comment on the filing. Morel’s attorney, William Taylor, declined through an assistant to comment, and Hafle’s attorney was out of the office and unavailable to comment.
Sources familiar with the matter told the Houston Chronicle this week that BP and the government have been negotiating intermittently on a possible settlement of government civil allegations. No deal is expected before the November election, these people said.
Fines and penalties
BP declined to comment on Friday’s court filings.
The company already has spent or committed tens of billions of dollars to clean up damage from the spill and compensate victims, and the total amount it pays could balloon when fines and penalties are factored in.
The company has reached a proposed class action settlement covering individuals and businesses claiming health and economic damages, but that deal doesn’t cover government fines and penalties.