As discussed in Parts I, II, III and IV of McIntyre v. British Petroleum, there is no dispute that Chris McIntyre provided BP design drawings for a device very similar to the one that the company eventually used to cap the Macondo Well after the Deepwater Horizon blowout. BP simply says that it – and not McIntyre – had the idea first. And while McIntyre did indeed propose a unique and novel venting connection at the flex joint, BP claims that its own engineers came up with the same design some days before McIntyre. But the deeper one digs into the voluminous record, the questions for BP become more numerous and company’s answers murkier.
Add it up
In Part III we discussed how the dates on some of the documents, photographs and trial testimony do not appear to jibe. When combined with BP’s less than stellar track record when it comes to credibility – it makes one wonder.
Of what track record do I speak? For starters, shortly after the spill in 2010, The Washington Post published an article detailing how BP doctored a photo to create a more compelling “crisis center” image as part of its post-spill PR spin. Of course, we have our own photograph of questionable provenance in Part III.
And then there is BP’s felony guilty plea for obstructing Congress, which The New York Times characterized as the company admitting to withholding documents and providing false and misleading information to Congressional investigators. The Times called it a “cover-up.” In fact, in its felony guilty plea, BP admitted that it was corrupt in misleading Congress as to the size of the spill. During the initial Congressional inquiry, the company reported the likely per day flow rate at approximately 5,000 barrels, when in fact BP knew that the rate was much, much higher, possibly approaching 100,000 barrels per day. Charming.
Perhaps the most damming indictment of the company’s veracity came from Judge Carl Barbier, the federal jurist overseeing BP’s Clean Water Act trial and other spill-related litigation in New Orleans. At one very contentious point in the case, Judge Barbier had tired of BP’s attorneys speaking out of both sides of their mouths (to put it politely):
“Frankly, it is surprising that the same counsel who represented BP … now come to this Court and the Fifth Circuit Court of Appeals and contradict everything they have previously done or said on this issue. Such actions are deeply disappointing.” – Judge Carl Barbier, Order, November 22, 2013
Judge Barbier later criticized BP’s lawyers for flouting page limit restrictions on a legal brief. The Judge discovered that company attorneys fiddled with the line spacing in order to gain an unfair six-page advantage over the Plaintiffs. Of the stunt, Judge Barbier said it “would not be appropriate for a college term paper. It certainly is not appropriate here.”
So much for straight shooting.
Who to believe?
While we of course believe our client, Chris McIntyre, BP obviously feels differently. We would simply like for a jury to decide. And while the engineering subject matter is complex, and the terminology mind bending, it shouldn’t take a jury too long to pick up on the inconsistencies that we allege.
Our latest discovery is a document buried deep in the record of BP’s 2013 Clean Water Act trial in New Orleans. Referred to cryptically as TREX 009806, it is an email from BP’s Trevor Smith in which he describes what eventually became known as the “Transition Spool.” But in this email he instead calls it a “Flange Spool.” The email is dated June 18, 2010. It implies that as of that date, the phrase “Transition Spool” was not being used (at least with any frequency or consistency) to describe the device that would eventually be installed to stop the flow of oil. Instead, BP and others were calling the device the “Flange Spool” or “Flange Connection Spool.” As far as we can discern, it was not until sometime later in June that the nomenclature officially changed and the device was consistently referred to as the “Transition Spool.”
Digging deeper into that same trial exhibit (TREX 009806), we find attached to Trevor Smith’s email referenced above a BP produced PowerPoint dated June 17, 2010. In it the device is again referred to as the “Flange Connection Spool,” and not the “Transition Spool.”
Who cares and why is this significant? If no one within BP was calling the subject device the “Transition Spool” until late June (let alone Trevor Smith, BP’s man in charge of the project), then how did BP produce a photograph from early May showing the device labelled “Transition Spool?” Logic tells us that any photo taken of the device in early May 2010 should carry the caption “Flange Spool” and not “Transition Spool.” The fact that the May 9 photo is captioned the latter and not the former makes one wonder about its origins. We believe a jury should be tasked with solving this photo conundrum.
And what about BP’s technical drawings of the device dated May 1, (as well as some dated May 4, May 5, and May 7) where it is referred to as the “Transition Spool?” If in real time – i.e., contemporaneously – the device was being called a “Flange Spool” until late June when we believe its name was indeed changed to the “Transition Spool,” then how did the term “Transition Spool” end up on technical drawings from the first week of May 2010 (if it wasn’t being called that at the time)? Again, these are questions of fact for a jury.
Sure, BP can (and probably will) claim that it waffled on the name, first calling it the “Transition Spool,” then the “Flange Spool,” and then back to the “Transition Spool,” but come on. When coupled with all of the other discrepancies in BP’s story (see “Add it up” above as well as Parts I, II, III and IV), it may make a jury question the authenticity of one or more of these items.
Follow the money
Readers may ask, “What’s the point of all of this subterfuge? Why would BP want to go through all of these machinations in order to say it designed the device and not McIntyre?”
Embarrassment – but more importantly – money.
As for embarrassment, as discussed in Part I, Chris McIntyre is an unemployed truck driver in Alaska. He has no formal engineering training. BP is well known for a corporate culture driven by hubris and ego. It must have been humbling for its professional engineers to be bested by the likes of McIntyre.
But a more important driving force is money. There is an enormous fortune to be made by those who control this new intellectual property, as well as those who can build and sell the capping devices developed from same. Shortly after the BP disaster, Oil Spill Response Limited (OSRL), a company owned by several oil majors, began offering capping stacks similar to McIntyre’s design, as did a another entity called the Marine Well Containment Company (MWCC). BP is a shareholder of both companies.
Then on April 14, 2016, the Obama Administration issued new rules requiring the use of these devices on offshore rigs:
Operators “must have access to and the ability to deploy Source Control and Containment Equipment and all other necessary supporting and collocated equipment to regain control of the well. Source Control and Containment Equipment means the capping stack, cap-and-flow system, containment dome, and/or other subsea and surface devices, equipment, and vessels, which have the collective purpose to control a spill source and stop the flow of fluids into the environment or to contain fluids escaping into the environment.” – Final Rule, Department of Interior, Bureau of Safety and Environmental Enforcement, 30 CFR Part 250, Section 250.462, Pages 471-474.
BP has filed for a patent which will allow the company to control all such capping stack production. BP’s Trevor Smith is listed on the patent application, and Trendsetter’s Mario Lugo has been tapped to actually build the devices. Interestingly, Lugo was present at the sparsely attended, closed-door “peer-assist” meeting on May 14, 2010. In that meeting the device (“Transition Spool” / “Flange Spool” – whatever you want to call it) was discussed. That meeting took place hours after McIntyre delivered his design to BP at 3:48 AM Alaska Standard Time on the morning of May 14, 2010.
The case is Christopher McIntyre v. BP Exploration and Production, et al., Ninth Circuit Court of Appeals Docket #: 15-35234.
As a plaintiff attorney, Tom Young has been at the forefront of some of the Nation's worst disasters. In 2015, he was judicially appointed to represent over 200,000 plaintiffs in an allocation proceeding involving a $1.24 billion settlement with Deepwater Horizon contractor Halliburton and rig owner Transocean. Currently, he's focused on representing numerous communities across the country that have been ravaged by the opioid epidemic and are now seeking damages from drug manufacturers and distributors.