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Tuesday, July 30, 2013

What Joe Nocera’s defense of BP leaves out

New York Times columnist bemoans failure of oil giant
to get its corporate life back

Pity poor BP.  In an act of noble corporate citizenship the oil company rushed to make amends for that little problem it encountered down in the Gulf of Mexico a few years ago – only to find itself picked on by those big bullies in the plaintiffs’ bar.

Hey, don’t laugh.  That’s the serious take of a serious columnist for a serious newspaper.  Joe Nocera of The New York Times is deeply upset that more than  three years after BP’s Deepwater Horizon drilling rig exploded, killing 11 (deaths for which the company pled guilty to multiple counts, including felony manslaughter), injuring 17 and setting off the worst environmental disaster in American history, BP hasn’t gotten its corporate life back, so to speak.

He writes:
BP is the best example I’ve ever seen of a company that actually tried to find a better way. Immediately after the spill, it set up a claims process to get money into victims’ hands quickly, without having to file a lawsuit. Though that process had its critics, it worked. Of the $11 billion BP has paid out in claims, $6.3 billion was paid through that process.
But BP did not set up this process out of the goodness of its heart.  It did so under pressure from the Obama Administration, and, as we pointed out in our comprehensive 2010 report, because such a process is required by federal law.  BP made sure the process was set up in a way that limited its exposure and obtained final releases of liability from victims for as little as possible.

         Contrary to Nocera’s insinuation, the process did not provide a magical solution which adequately replaced the right to seek redress in court.  Victims whose lives have been devastated by the spill had to make impossible decisions – accept a settlement without knowing how much the spill ultimately may cost them or take their chances in the court system where the deck might also be stacked against them.

Nocera never explains the criteria he uses to determine that the claims process “worked.”  In our report, we found serious problems, including:

● The way the administrator of claims was paid raised questions about whether he put BP’s interests ahead of victims’.

● Victims received insufficient information when their claims were denied or underpaid.

● To get any payment at all, victims had to sign away their right to seek compensation for future, unforeseen losses.

Nocera then takes a cheap shot at the judge, condemning him for once having been “a Louisiana plaintiffs’ lawyer …”  But here’s the thing about judges: they’re almost always lawyers.  And lawyers often specialize in one side or the other.  Does Nocera really believe that only a corporate lawyer can be objective?

          If so, he should be happy with the prospect of litigation in the Gulf Coast states.  The Fifth Circuit Court of Appeals, which would hear appeals from awards to victims, is chock full of judges with ties to the oil industry – judges like Jerry Smith, aptly characterized by AFJ President Nan Aron as
a former chairman of the Texas State GOP Executive Committee who once characterized the League of Women Voters as the ‘plague of women voters,’ and referred to the International Women's Year Conference as a ‘gaggle of outcasts, misfits, and rejects,’ with ‘perverted views.’ He was also an oil-industry lawyer, specializing in federal energy litigation – a category of cases he now frequently hears as a judge in the oil-soaked Fifth Circuit.
Perhaps most alarming, Nocera snidely dismisses the notion of helping people who were harmed “indirectly” – seeing that as nothing but a loophole for those bad, bad plaintiffs’ lawyers to take advantage of.

But “indirect” harm can mean a tourist business bankrupted because people changed their vacation plans.  Or it can mean damage to a seafood business caused because people just didn’t want to eat seafood from the Gulf.  The federal law governing damages caused by oil spills allows victims to recover for exactly this type of indirect harm.

And, as we noted in our report, “the disaster is hurting more than people’s pocketbooks.  Surveys of residents show that depression is up 25 percent, and domestic violence has increased.”

But Nocera chooses to smear anyone not directly impacted by polluted beachfront or seafood as “basically bystanders [who] now have their hands out…”

And what is behind this outpouring of bile?  Nothing but Nocera’s own personal experience covering a very different kind of case nearly two decades ago.  He covered mass litigation against a manufacturer of silicone breast implants, and felt himself to have been an eyewitness to the abuses of plaintiffs’ lawyers.  (Even here, Nocera’s account is incomplete.  He cites an Institute of Medicine review claiming that there was insufficient evidence to support allegations about systemic illnesses allegedly caused by the implants.  But, as AFJ first noted in a 2006 report, the same review found a high rate of localized problems, including rupture of the implants, pain, disfigurement and serious infections.)

“We all have experiences that shape our view of the world, and this was one of mine,” Nocera wrote.

Yes, we all have such experiences, and we all are affected by them.  But we also must be on guard against the tyranny of personal experience – how the raw emotional impact of something we’ve seen with our own eyes can blind us to context and even to facts.

We can’t help but wonder: What if Joe Nocera’s father ran a seafood business that had been wiped out by the "indirect" effects of an oil spill.  What would he be writing today?

And if you’d like to meet some real people who just might change your mind, Joe, check out our documentary about the aftermath of the BP spill, Crude Justice:

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