Two Less Than Laudable Performances on Oil Spill

Friday, July 16, 2010

Page 7

IN MY OPINION (Column)

Two Less Than Laudable Performances on Oil Spill

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Is there a difference between white flour and oil? Not really. In 1863, as Byrne walked in front of Boadle’s bakery, a barrel of flour fell on his head. So, in 2010, uncontrollable oil spilled upon the landscapes, businesses and property owners in the Gulf states. In 1863, the judge exhorted res ipsa loquitur (the thing speaks for itself). Thus, was born the doctrine of res ipsa loquitur, the scourge of doctors in the present era. It creates a presumption of negligence but not strict liability, provided a defendant has exclusive control, the act does not usually occur in the absence of negligence, and as to the incident, there is no contribution by the plaintiff.

It is not conceivable to imagine more apposite application of the doctrine of res ipsa loquitur than the BP oil spill of 2010.

Since 1863, this doctrine has been extended to rear end collisions, medical mishaps, hospital mishaps, Corvair automobiles, and even asbestos litigation. The facts of the present oil spill spell out these elements. There is just no question about the negligence.

Two prominent persons in politics have emerged with less than credible performances. One is the president of the United States, whose Harvard legal education may have been overcome by his desire for publicity. The other is John Barton, Texas’ broad-mouthed, narrow-brained gift to Congress.

Perhaps the damage to his predecessors’ reputation brought by Katrina has hastened the president’s involvement in the oil spill tragedy. He must be reminded. He is commander in chief, not adjustor in chief. The negotiation leading to a $20 billion fund was a myth. BP, though its financial responsibility is not questioned, did not deposit or have available that sum presently. That fact itself questioned the use of the term “escrow.” Nor was there a negotiation, nor an assessment of the actual damage, nor is an assessment actually possible. Liability was never questioned, nor was BP’s amenability to U.S. judicial jurisdiction.

Damages, unlike culpability, are entirely unascertainable. What is the value of the destruction of the environment, the wildlife damage, or the value of a human being? Although a person’s property damage may be ascertainable, this most certainly is not true with respect to business losses, loss of employment opportunities, etc. The law so decreed in 1842, when a court announced that to hold otherwise, the most absurd and outrageous consequences would ensue. This was followed in cases involving interference with expectancies.

This is not justice. It is practical politics. Some victims are always uncompensated. To solve this quagmire, i.e., the apportionment of the funds, but not the extent of the funds, the president wisely appointed Kenneth Feinberg as the administrator. Ken Feinberg’s claim to fame was established when he evaluated the value of the Zapruder video of President John F. Kennedy’s assassination and more recently acted as special master for the Sept. 11 Victim Compensation Fund. In this later position, he handed out more than $7 billion to more than 5,000 people, a position dwarfed by his present responsibilities.

The other personage in the political drama, the oil spill, is U.S Rep. John Barton from Texas, who is eking his congressman’s salary with assistance of more than $1.4 million in contributions from the oil and gas industry. He insisted that the White House promptly apologize, as he did, to BP for its Chicago-type shakedown politics. He was promptly chastised by Republican leaders who threatened to take his committee post away from him unless he promptly apologized for those idiotic comments.

Can you believe that? It appears that Rep. Barton is bucking for admission to that elite club in which are seated the director and executive of the Ford Motor Co., who introduced and marketed the Edsel, and the attorney who uttered “Step forward Mr. Simpson and try on this glove.” Hardly a bastion of intellectual prowess.