) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MDL 10-0376

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 

### IN RE DEE PWATER H ORI Z ON INCI DENT LI TI GATI ON

O N R E V I E W B Y T H E M U L T I D I S T R I C T L I T I G A T I O N P A N E L

P R E S I D I N G J U D G E P E E P L E S delivere d the opinion of the MDL Panel. Br itish P etroleum Exploration & Production, I nc. (B P) asks us to a ppoint a pretria l judge for 1 eig ht case s that stem from the April 20, 2010 oil-spill incident at the D eepw ater Horizon platform i n t h e Gu l f o f Mexi co. Five case s are pending in Har ris County , with three others in Galveston County

. Severa l other case s have been remove d to fede ral court, wher e they are pending in a fede ral MDL proce eding

. All plaintiffs oppose BP’s MDL reque st. For the rea sons stated below, we deny the motion. Administrative Rule13 authorizes us to transfe r “related” case s (i.e. cases invol ving c ommon questions of fac t) from differ ent trial courts to a single pretria l judge if transfe r will serve the convenie nce of the parties and witnesses and promote the just and eff icient conduct of the litigation. See In re Alcon Sharehold er L i t i g a tion, M.D.L

. No. 10-0115, at *1 (Tex. M.D.L

. Panel May 6, 2010); In re Hurricane Rita Evac uation Bus Fire , 216 S.W .3d 70, 71-72 (Tex. M.D.L

. Panel 2006); T E X . R. J U D . A D M I N . 13.2(f) , 13.3(a) , 13.3(l). Relatedne ss is a threshold question. I f case s are not related we lack authority to assig n them to an MDL pretria l judge , even if such an assig nment would

serve the intere sts of convenie nce a nd eff iciency

.

Five D iffer ent B P entities are named as de fenda nts in one or more of

these c ases: (1) BP 1 Ex ploration & Production; (2) B P, PL C; (3) BP Products, Nor th America , I nc.; (4) B P Corporation, North Ame rica , I nc.; and ( 5) B P America , I nc. We will refe r to these e ntities collectively

as “B P” unless otherwise stated.Although one or more BP entities is a defe ndant in all eig ht case s, eac h case involves differ ent

alleg ations arising from differe nt events on differe nt dates. (1) Robert Young is a seama

n injured

on April 20 on the Dee pwater Horizon platform itself. (2 ) McI lvain Enterpr ises asser ts claims ag ainst BP for brea ch of contra ct, fra ud, and tortious interfe renc e arising from a contra ct signe d on May 7 t o p ro v i d e equipment. (3) & (4) J ames Hebe rt and Christopher Eldridg e sue for injuries sustained on May

11 and 17 while their

ship w orked to contain the spill. (5) De wone Youngand 2 Eric Bush, plaintiffs i n t h e s am e ca se, wer e exposed to natura l g as on J une 11 when their vessel collided with oil equipment owned by another company . (6) Sante Marte Paulino suffe red neck and back injuries on J une 13 while he was working to contain the spill. (7) Donald McCormick sustained phy sical injuries on J uly 21 when a larg e tank on his ship broke loose. (8) Thomas Boutte sues for neck, back, and shoulder inj uries sust ained on Aug ust 10 when his vessel collided with a barg e. Eac h of these case s has its orig in i n t h e Ap ri l 20 explos ion in the sense that “but for” that explos ion the case s would never have a risen. All the case s are linked by the common event of the explos ion a

nd ensuing clea

n-up. B ut we held in In re Delta Lloyds I ns. Co. of Houston , 2008 WL 5786888 (Tex. M.D.L

. Panel 2008), that a common orig in or common event, without more, does not make case s “re lated” under Rule 13. I n Delta Lloyds sever al insurers asked for a pretria l MDL judge in first-par

ty insurance case s arising fr om one event, Hurric ane Rita. We held that the hurrica ne, which was a common event but not a contested question of fac t, did not make the ca ses

Eldridg e suff

ere d elec tric shock. He bert suff ere d subcutane ous injury

when disper sant 2 soaked into his pants and socks a nd then into his skin. Both men also inhaled dispersa nts. 2related. 3

I n other common-eve nt case s there have been additional circ umstances of rela tedness. We have g rante d MDL motions when a defe ndant in sever al case s was alleg ed to be liable for a single event; 4 and if these BP case s all involved liabili t y f o r t h e April 20 explos ion, this would be a differ ent matter. We have also g rante d MDL motions in product liability case s involving differ ent events at differ ent times linked by claims that a product was defe ctive. See, e.g., In re Digitek Liti gation , No. 09-0408 (Te x . M.D.L . Panel Aug . 5. 2009), at *1-2 ( citing c ases)

. Our decision in In re Personal Injury Liti gation Against Great Lakes Dredge & Dock , Co., LLC , 283 S.W .3d 547 (Tex. M.D.L

. Panel 2007), fits within these principles. There we denied an MDL motion beca

use the case s wer e not related—the plaintiffs “we re injured at d i ffe rent times, in differ ent states, on differ ent vessels, while eng ag ing in differ ent activities, resulti ng in differ ent

I n some of the Delta Lloyds case s, we de nied the MDL motion because the only 3 relatedness wa s the hurric ane. I n other Delta Lloyds case s we g rante d the motion, holding that asser tions that the insurers followed sta ndard c laims-adjusting pr actice s and proc edure s, alleg ed to be unlawf

ul, constituted common fact que stions, which made the c ases r elated. L ater , in In re Texas W indstorm Ins. Ass’n Hurricanes Rita and Humbe rto Li tigation , 2009 WL 888054 (Tex. M.D.L . Panel 2009), we g rante d an MDL motion when simil ar e x tra-c ontrac tual claims wer e asser ted in insurance cover ag e ca ses ar ising fr om two hurrica nes. I n Delta Lloyds and Texas W indstorm the inquiry

was whe ther ther e wa s any common question of fa ct bey ond the mere common event, f

or which no pa

rty was liable. See, e .g., In re Continental Airlines Flight 1404, No. 09-0201 (T ex. M.D.L . Panel, May 4 7, 2009) (c ases a

rose f rom fire on airline flig ht); In re De ep South Crane & Rigging Co., 2008 WL 5784600 (Tex. M.D.L . Panel 2008) (la wsuits concer

ned injuries ca

used by collapse of

cra ne at re finery

); In re Phy llis T

omasino Lit igation, 2008 WL 5784596 (Tex. M.D.L . Panel 2008) (four suits by fired e mploy ee a g ainst employ er, supe rvisor, and me mbers of boa rd of trustee s alleg ing br eac h of contra ct, def amation, and other

cause s of ac tion); In re Cano Petroleum , Inc., 283 S.W .3d 179 (Tex. M.D.L . Panel 2008) (la wsuits asserted tha t defe ndants ca used wildfire , which spre ad and c aused da mag es); In re HurricaneRita Evacuation Bus Fire, 216 S.W .3d 70 (Tex. M.D.L . Panel 2006) (suits alleg ed that entities eva cuating senior citizens by bus were responsible for

bus fire)

. 3injuries.” Id. At 548. I n Great Lakes there was no sing le eve nt linking the ca ses.

Her e BP’s responsibility for the April 20 oil spill is dire ctly at issue only in the Robert Young

case ; the re is no other case curr ently pending in the Texas courts alleg ing injury from the April 20 explos ion. Concerning t h e p o s t -A p ril 20 case s, BP has not shown how discovery might widen bey ond the case -spec ific issues of its leg al responsibility as the entity that hired the individual boats to help with the clea

n-up. Our understanding of the fac ts is of course l i mited to the pleading s and the briefs. I f our assessment proves to be inacc urate , and the courts allow conflicting discovery obligations in the se

case s (or ther e is a failure to coordinate wit h the federa l MDL proce ss), that might shed new lig ht on rela tedness and justify a new motion. We hold that the case s do not involve common questions of fac t and are not rela ted within the meaning of Rule 13. The motion is theref ore de nied.

C H I E F J U S T I C E S S T O N E and W R I G H T and J U S T I C E B R O W N concur . J U S T I C E M C C L U R E did not participa te.

___________________________ David Peeple s, Presiding Judge OP INION ISS UED : May 27, 2011

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