BP Products North America Inc. ( BP ) submits that we all the Court and all

Transcription

1 MASTER FILE NO. 10UC0001 Filed 13 November 19 P2:08 John D. Kinard District Clerk Galveston District IN RE: } IN THE DISTRICT COURT OF } TEXAS CITY REFINERY ULTRACRACKER } EMISSION EVENT LITIGATION } GALVESTON COUNTY, TEXAS } } 56TH JUDICIAL DISTRICT BP PRODUCTS PROPOSED PLAN TO RESOLVE ALL CLAIMS BP Products North America Inc. ( BP ) submits that we all the Court and all lawyers for all parties should have the goal to resolve all claims currently on file in this MDL proceeding in a reasonable time. BP submits that our goal should be to resolve all claims fully and finally within three years, i.e., on or before Thanksgiving Our failure to do so can have only one result the unnecessary imposition of extraordinary and unreasonable cost and burden on (i) this court, (ii) every party and lawyer involved, and (iii) the citizens of Galveston County. The three-part plan outlined in this filing is designed to resolve all claims currently on file in this matter by Thanksgiving Roughly 49,000 individual claims are currently on file for roughly 45,000 unique individual plaintiffs. Roughly one-third of those plaintiffs reside or work within 2 miles of the BP Texas City Refinery Ultracracker flare. Based on the air modeling performed for plaintiffs by Dr. Rosenfeld (70% DRE, ULC flare and routine emissions combined, full event averages), some limited number of plaintiffs living or working within 2 miles of the BP Texas City Refinery ULC flare were exposed to very small amounts of benzene, NO 2 and SO 2 : up to 5 ug/m 3 of benzene, up to 5 ug/ m 3 of NO 2 and up to 5 ug/ m 3 of SO 2. This is less than or equal to 3% of the NAAQS or ESLs for these chemicals. But most plaintiffs living or working within 2 miles of the BP Texas City Refinery 1

2 Ultracracker flare were exposed to even less: less than 2 ug/m 3 of benzene, less than 2 ug/m 3 of NO 2 and less than 2 ug/m 3 of SO 2. 2 ug/m 3 of these chemicals is roughly 1% of the NAAQS or ESLs for these chemicals. See graphic demonstratives attached as Exhibits 1-3. There is no scientific or medical literature meeting Havner/Robinson requirements that associates this level of exposure with any injury claimed by any plaintiff in this MDL proceeding. For now, and for the sake of this proposed plan, however, BP will allow for the possibility that some subset of plaintiffs living and working within 2 miles of the BP Texas City Refinery Ultracracker flare could (i) prove that he or she was injured by exposure to chemicals emitted by BP during April and May 2010 and (ii) have a verdict in his or her favor upheld by the court of appeals and Texas Supreme Court. BP s plan allows for this possibility. But the majority of claimants in this action reside or work further away 3, 4, 5 miles away and many even greater distances. There is no reasonable basis to believe that any of these claimants can (i) prove that he or she was injured by exposure to chemicals emitted by BP during April and May 2010 and (ii) have a verdict in his or her favor upheld by the court of appeals and Texas Supreme Court. These parties are simply clogging up this court and interfering with the prospect that any plaintiff living and working closer to the refinery may ever have an opportunity to prove a meritorious claim. BP proposes that the court and parties begin to implement an efficient process now to dismiss claims that cannot prove merit. 2

3 I. BP s Plan to Resolve All Claims Within 3 Years BP s plan consists of three different approaches to three different categories of claims. These are: (1) targeted housekeeping motions to dismiss claims that are deficient for reasons other than the merits, e.g., duplicate claims; (2) limited discovery and, if necessary, motions for summary judgment to dismiss plaintiffs who cannot prove injury caused by chemicals emitted by BP during April and May 2010; and, (3) trials and appeals. A. Housekeeping Motions. Duplicate Claims. Thousands of claims on file in this matter are deficient and should be dismissed for reasons other than the merits. For example, more than 4,000 plaintiffs filed claims more than once. BP recently brought 20 sample motions to dismiss the second-filed complaint under Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974). In the future, BP proposes to bring motions against 500 plaintiffs at a time, attaching spreadsheets showing (a) the name of the plaintiff, (b) the first filed (surviving) complaint number, (c) the second-filed (to be dismissed) complaint number, and offering supporting information on request and/or at any hearing requested by any plaintiff. If BP files two such motions per month, all duplicate claims should be dismissed by mid OCIP-Covered Workers. More than 1,000 plaintiffs claim exposure while working for BP or a BP contractor at the BP Texas City Refinery during April-May BP maintains an Owner Controlled Insurance Program (OCIP) for workers compensation insurance for BP and its contractors. Accordingly, these worker claims are barred because the workers compensation system provides the exclusive remedy. BP 3

4 proposes to file one or more test motions for summary judgment to dismiss the claims of these plaintiffs in January Thereafter, BP proposes to file summary judgment motions against larger groups of OCIP-covered plaintiffs, with the goal to have all such claims dismissed in Fact Sheet Defaults. Thousands of plaintiffs did not serve Fact Sheets when due, nor after notice and an opportunity to cure. Additional thousands of plaintiffs filed materially incomplete Fact Sheets and have not completed them after notice and an opportunity to cure. BP proposes that to file motions to dismiss these plaintiffs, with the goal to have all such claims dismissed in B. Dismissal of Non-Trial Pool Plaintiffs Who Cannot Prove Injury. BP recently sent a short set of Interrogatories, Requests to Admit and Requests for Production to a sample group of 70 plaintiffs. These plaintiffs were selected from the group who live and work more than 2 miles from the BP Texas City Refinery. In simple terms, this limited discovery asks each targeted plaintiff to admit that he or she has no evidence to prove an injury caused by exposure to chemicals emitted by BP during April and May 2010; and, if denied, to provide all supporting evidence to BP. BP expects that, in response, these sample plaintiffs will (i) file nonsuits, (ii) default in meeting their discovery obligations, or (iii) produce evidence that is insufficient to prove an injury. BP proposes to use this sample to establish efficient procedures to dismiss the claims of plaintiffs who cannot prove an injury. More specifically, BP believes that most (likely all) plaintiffs who live and work more than 2 miles from the BP Texas City Refinery cannot under any conceivable set 4

5 of circumstances prove an injury caused by exposure to chemicals emitted by BP during April and May Whatever those plaintiffs and their lawyers may have believed at the time complaints were filed, by now they should know that they cannot prove those claims. Every plaintiff who now knows or whose attorney now knows that that plaintiff cannot prove that he or she has an injury caused by exposure to chemicals emitted by BP during April and May 2010 should file a voluntary non-suit. In order to stimulate them to file nonsuits and to develop a foundation to dismiss their claims if they do not nonsuit their claims, BP proposes to send waves of equivalent discovery requests to selected plaintiffs who live and work more than 2 miles away from the BP Texas City Refinery. BP proposes to send this initial discovery to 10,000 or more plaintiffs in 2014 and similar numbers in 2015 and In the event that any plaintiffs receiving this discovery produce evidence purporting to prove an injury caused by exposure to chemicals emitted by BP during April and May 2010, BP proposes to file sample motions for summary judgment to demonstrate that that evidence is insufficient to prove a claim. If the court grants those motions, some plaintiffs may appeal and then we all will have appellate guidance that will be instructive in the handling of remaining claims. If the court denies any of those motions, BP will ask the court to certify that ruling so that BP may obtain appellate guidance to help BP, this court and the remaining plaintiffs know how best to develop and to resolve remaining claims. 5

6 In the event that any plaintiffs do not file nonsuits and also do not adequately respond to this discovery, BP proposes to file motions to dismiss those plaintiffs as a sanction for discovery default. C. Trials and Appeals. BP understands that some (maybe all) plaintiff lawyers in this matter propose to try more cases. That is simple enough to do, as the parties have already prepared for trial 200 Trial Pool Plaintiffs. BP does not object to trying the claims of one or more groups of up to 6 Trial Pool Plaintiffs consistent with the terms of the existing Docket Control Order. Indeed, BP allows for the possibility that trying the claims of a few more groups of Trial Pool Plaintiffs, and testing any plaintiff verdicts on appeal, may help the court and the parties to determine whether any plaintiff in this matter may have a viable claim and, if so, how to identify such a plaintiff and how to resolve his or her claim. But trying and appealing more cases has extreme limits to help this court and the parties to resolve all claims in this MDL proceeding within 3 years or even within the lifetime of the youngest plaintiff. Even assuming that we try the claims of four 6-person groups per year, it would take well over 1,000 years to resolve all claims. The outcome of any one trial is not binding on any other party. For example, if the next jury renders another defense verdict, will all remaining plaintiffs accept that as confirmation that all other claims have no value; 49,000 voluntary nonsuits to follow? If the next jury renders a verdict for some plaintiffs and that verdict is reversed and rendered on appeal, will all other plaintiffs nonsuit their claims in that event? If one or more plaintiffs in any trial win an award that is not reversed on appeal, will BP find that instructive on whether any 6

7 other plaintiff suffered and can prove injury? The answer to all of these questions is, of course, no. Put simply: more trials and, if necessary, appeals is the least efficient tool available to the court and the parties for resolving all claims in this MDL proceeding, but BP allows for the possibility that something of value may come from it and so includes trials and appeals in its proposed plan. II. Open Issues This plan, as currently expressed, does not provide a fixed plan for resolving the claims of all plaintiffs living and working within 2 miles of the BP Texas City Refinery. Instead, it assumes that the experience of the court and the parties resolving claims pursuant to the three approaches outlined above will provide guidance and framework for resolving claims of this group not otherwise resolved under the three approaches. Respectfully submitted, McLEOD, ALEXANDER, POWEL & APFFEL, P.C. By: /s/ Katherine D. Mackillop James B. Galbraith State Bar No Rosenberg Street Post Office Box 629 Galveston, Texas Telephone: (409) Telecopier: (409)

8 TEKELL, BOOK, ALLEN & MORRIS, L.L.P. Kenneth Tekell, Sr. State Bar No Mike Morris State Bar No McKinney, Suite 4300 Houston, Texas Telephone: (713) Telecopier: (713) FULBRIGHT & JAWORSKI LLP Otway B. Denny, Jr. State Bar No Katherine D. Mackillop State Bar No Fulbright Tower 1301 McKinney, Suite 5100 Houston, Texas Telephone: (713) Telecopier: (713) BRACEWELL & GIULIANI LLP Warren W. Harris State Bar No Louisiana Street, Suite 2300 Houston, Teas Telephone: (713) Telecopier: (713) FERNELIUS ALVAREZ PLLC Stephen M. Fernelius State Bar No One Houston Center 1221 McKinney Street, Suite 3200 Houston, TX Telephone: (713) Telecopier: (713)

9 SQUIRE SANDERS (US) LLP Damond R. Mace Stephen Fazio 4900 Key Tower 127 Public Square Cleveland, Ohio Telephone: (216) HERRICK & ASSOCIATES, P.C. David P. Herrick State Bar No Preston Road, Suite 480 Dallas, TX Telephone: (214) Telecopier: (214) BP PRODUCTS NORTH AMERICA INC. William Noble State Bar No Westlake Park Blvd. Houston TX Telephone: (281) ATTORNEYS FOR DEFENDANT BP PRODUCTS NORTH AMERICA INC. CERTIFICATE OF SERVICE In compliance with Rules 21 and 21a of the Texas Rules of Civil Procedure, this pleading was served upon the following counsel of record on November 19, Mr. Anthony G. Buzbee THE BUZBEE LAW FIRM 600 Travis, Suite 7300 Houston, Texas NOTICE COUNSEL FOR PLAINTIFFS Via and Hand Delivery /s/ Katherine D. Mackillop KATHERINE D. MACKILLOP

10 EXHIBIT 1

11 SO2 Event Averages at 70% DRE (Rosenfeld) μg/m Some Plaintiffs within 2 miles of the ULC Flare were exposed to up to 5 μg/m3 of SO2 based on Rosenfeld s model using 70% DRE, flare and routine emissions and 960 hourly averages. Most Plaintiffs within 2 miles were exposed to less than 2 μg/m % of NAAQS 2.5% of NAAQS 0 NAAQS Most Some

12 EXHIBIT 2

13 NO2 Event Averages at 70% DRE (Rosenfeld) μg/m Some Plaintiffs within 2 miles of the ULC Flare were exposed to up to 5 μg/m3 of NO2 based on Rosenfeld s model using 70% DRE, flare and routine emissions and 960 hourly averages. Most Plaintiffs within 2 miles were exposed to less than 2 μg/m % of NAAQS 2.5% of NAAQS 0 NAAQS Most Some

14 EXHIBIT 3

15 Benzene Event Averages at 70% DRE (Rosenfeld) μg/m Some Plaintiffs within 2 miles of the ULC Flare were exposed to up to 5 μg/m3 of Benzene based on Rosenfeld s model using 70% DRE, flare and routine emissions and 960 hourly averages. Most Plaintiffs within 2 miles were exposed to less than 2 μg/m % of ESL 3% of ESL 0 ESL Most Some