Interview: Robert Cunningham of Cunningham Bounds

Robert Cunningham is one of two Alabama trial lawyers on the panel of 15 that comprise the Plaintiffs’ Steering Committee—the group of lawyers representing all of the plaintiffs who have filed suit against BP and other defendants in the massive federal case that begins in U.S. District Court in New Orleans on Feb. 27. The other Alabama attorney on the committee is Rhon Jones, of the Beasley, Allen firm in Montgomery. Cunningham is with Cunningham Bounds in Mobile.

We talked with Cunningham in mid-January, just before the fireworks began.

The oil spill litigation is consolidated in New Orleans, La. before Judge Carl Barbier as MDL 2179. When many cases are filed against the same defendants and all of the cases arise from the same incident, the court system consolidates the cases through a process called “multi-district litigation, ” or MDL. Hundreds of cases against BP and other defendants were filed in courts throughout the United States, including claims for wrongful death, personal injury, property damage, loss of income, environmental degradation and loss of tax revenue. The harm and damages claimed by the plaintiffs were set out in the formal complaint filed in February 2011 that covers more than 200 pages.

Are the damages you and your team claim on behalf of your clients in addition to claims made on the $20 billion compensation fund?

Yes and no. The fund was established pursuant to the requirements of the Oil Pollution Act (OPA). By contrast, the multi-district litigation (MDL) in New Orleans is proceeding under the OPA, as well as maritime law and various federal environmental statutes. We believe the MDL affords BP’s victims the best opportunity to be made whole.

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The United States government is heavily involved in the MDL and is aligned in many respects with the 120, 000-plus MDL plaintiffs. Attorney General Luther Strange also has been actively involved in the MDL on behalf of the State of Alabama and in his capacity as coordinating counsel for the other states that are participating in the MDL.

How do you plan to assess the damages to your clients? Has the court established procedures and measures for this?

There is a large team of lawyers supported by numerous experts from various disciplines who have been analyzing and developing evidence to establish the nature and scope of the damages. There are a wide variety of individuals, businesses and governmental entities that suffered severe economic losses. This work has been in progress since shortly after the spill. The trial, which is scheduled to begin on February 27, is the first phase of a three-phase trial and the third phase will be dedicated to presenting the evidence on damages. It is tentatively scheduled to begin in the summer of this year.

To make claims beyond the measly $75 million limit on liability under the Oil Pollution Act of 1990, you’ll have to show gross negligence, willful misconduct or a violation of safety or operating regulations. Do you expect that will be difficult to demonstrate?

No. The 200-plus-page complaint filed on behalf of all MDL plaintiffs sets out in great detail the expected proof of the gross negligence and willful misconduct of BP and others. There have been approximately 280 witness depositions taken, most lasting two days each, and that testimony fully supports the allegations made in the complaint. Additionally, some 58 million pages of documents have been produced and reviewed and they provide additional clear evidence establishing gross negligence.

Give me a rough estimate of how long this phase of the trial will last? Is the assessment of damages a separate phase? How long could that take?

U.S. District Judge Carl Barbier has divided the trial into three phases. He has set aside three months for Phase One. Phase One will focus on issues relating to fault and allocation of fault for the blowout and the injuries and deaths that occurred on April 20, 2010. Phase Two will focus on the attempts to shut in the well following the blowout and the amount of oil that was discharged from the well. The Phase Three damages trial is expected to take place in the summer of 2012. The judge has pushed this case at breakneck speed and we do not expect it to slow down.

Many plaintiffs in the Exxon Valdez case waited two decades for their cases to be resolved. Is there reason to hope that this case will provide more timely justice?

Yes. The judge has made it clear from day one that this litigation will be unlike the Exxon Valdez case. For a case with over 120, 000 plaintiffs, this MDL has set numerous records already for the speed at which it has progressed. There have already been multiple appeals filed, heard and rejected by higher courts, all while the litigation proceeded at full speed. This will not be another Exxon Valdez.

The Supreme Court finally ruled in the Exxon Valdez case that under maritime law punitive damages could not exceed the compensatory damages. Is that the limitation in this case?

The holding of the Court in Exxon Valdez that the ratio should be one to one was limited to those cases where the wrongful conduct falls on the lower end of the blameworthiness scale. Because the Court found that Exxon did not act maliciously or in pursuit of financial gain, it set a low limit for punitives. We expect the facts in this litigation to conclusively and clearly demonstrate that a higher ratio would be appropriate because of the egregious conduct of BP and other parties. What ratio the Court chooses to apply, of course, remains to be seen.

Plaintiffs claim in their complaint the defendants committed an act of trespass onto property owners’ coastal properties. Does that take the case out of maritime law?

No. The Court has ruled that state law does not apply to these claims. There are claims in the MDL that raise these issues and that will be included in the overall damage assessment as the case moves forward to a conclusion.

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