In finding that BP acted with “gross negligence”in the 2010 Gulf of Mexico disaster, the federal judge overseeing the oil spill litigation laid much of the blame on BP’s top two supervisors onboard the Deepwater Horizon drilling rig, both of whom face criminal charges for allegedly misinterpreting a critical safety test and ignoring clear warning signs that the Macondo well was in danger.
Some experts following the case say U.S. District Judge Carl Barbier’s ruling last week may foreshadow trouble for the men, Donald Vidrine and Robert Kaluza, who areset to be tried on manslaughter chargesin the deaths of 11 workers who died on the rig.
The trial will be before U.S. District Judge Stanwood Duval Jr., but when it happens has yet to be determined.
Vidrine and Kaluza are among five mostly rank-and-file employees who were charged in connection with the oil spill.
Though Barbier’s ruling has no direct legal bearing on the criminal case, jurors in it will likely hear much of the same evidence that led him to find the botched safety test was “a substantial cause of the blowout, explosion, fire and oil spill.”
“It’s a very unfavorable decision, particularly for Vidrine,” said David Uhlmann, a law professor at the University of Michigan and former chief of the Justice Department’s Environmental Crimes Section. “But again, it’s important to stress that neither Kaluza nor Vidrine was represented in the trial that resulted in Thursday’s ruling, and neither one of them testified or had lawyers cross-examining witnesses or otherwise presenting a defense of their conduct.”
Uhlmann called Barbier’s ruling “a federal judge’s view of the evidence” but still one that “provides a window on how a juror might view their conduct.” He added that it has “no legal significance to their trial.”
Others, including an attorney for one of the men, cautioned against trying to assume too much about the effect of Barbier’s ruling on the criminal case, noting that the matter before Barbier revolved around which of the companies involved in the ill-fated drilling project should be held liable.
Former federal prosecutor Shaun Clarke, who represents Kaluza, echoed Uhlmann’s point that neither man presented a defense during the civil trial. And he noted that the pending criminal charges also require a higher burden of proof than the civil case: “beyond a reasonable doubt” rather than a preponderance of the evidence.
David Logan, a law professor at Roger Williams University who has been following the case, said that’s an important difference.
“A criminal jury with a different burden of proof being shouldered by the prosecution could reach a completely different conclusion as a technical matter,” Logan said. “It’s not really relevant to the criminal case.”
Still, Barbier used harsh language to describe the two men’s actions. In his 153-page ruling, the judge wrote that Vidrine acted “recklessly,” noting that the Lafayette man deemed the safety test a success even though he later told investigators its results were “squirrely.”
“All of the experts — even BP’s — agree that Vidrine’s interpretation was erroneous and that the test could not be deemed successful,” the judge wrote. “A reasonable company man in Vidrine’s situation would have concluded that the test was a failure and that it needed to be re-conducted based on the anomalous pressure reading.”
Vidrine wasn’t the only BP employee whose conduct Barbier found wanting. The judge also noted that Mark Hafle, BP’s senior drilling engineer in Houston, told Vidrine during a phone call shortly after the test was done that it was not successful. Despite that, Hafle did not order the test redone. Last year, Duval, who is overseeing the criminal proceedings, dismissed 11 charges of seaman’s manslaughter against both men, ruling that the statute covering that crime is meant to be applied to a captain or someone tasked with operating and navigating a vessel, not the supervisors of a drilling operation. Federal prosecutors haveasked the 5th U.S. Circuit Court of Appeals to reinstatethose charges.
Vidrine refused to testify in hearings after the spill to assess what went wrong, citing medical problems. Kaluza invoked his Fifth Amendment right against self-incrimination. In court filings, both men have maintained their innocence.
The absence of their testimony played a big part in Barbier’s decision-making, Kaluza’s attorney said.
“At that phase one trial, involving all of the gigantic companies, nobody defended the two guys on the rig,” Clarke said. “BP defended its engineers onshore, which is fine, that’s their right and they deemed that to be in their best interests. But at our trial, the guys on the rig will be defended. When the whole story’s told, including the defense of Bob and Don, it’ll come out very differently.”
Vidrine also is represented by a former federal prosecutor, Robert Habans Jr. He did not return a call for comment Friday.
While agreeing with Clarke that Barbier’s ruling should have no direct impact on the criminal case, Uhlmann said the judge’s carefully chosen words couldn’t be encouraging for the two defendants.
“There’s no way that anyone reading the decision could not come away with concern about their conduct, particularly Vidrine’s,” Uhlmann said. “The judge found that Vidrine was ‘reckless.’ If the jury in the criminal case reaches a similar conclusion, albeit it under a higher ‘reasonable doubt’ standard, you know Vidrine would be convicted and would face a lengthy jail sentence.”
If convicted, each man faces a maximum of eight years for each count of involuntary manslaughter and up to a year in prison on a count of violating the Clean Water Act.
Follow Richard Thompson on Twitter, @rthompsonMSY.