Deepwater Horizon Good Samaritans

Immediately following the explosion on the Deepwater Horizon, emergency response vessels rushed to the rig to save lives and render assistance to those in peril. In the ensuing months, responder companies worked to clean up the oil that was pouring into the gulf in an effort to mitigate the spill. As a consequence of these efforts to help in the worst environmental disaster in U.S. history, these emergency and cleanup responders now find themselves entwined in complex and protracted specialized multi-district litigation ("MDL"), despite the fact that protections were put in place following lessons learned from the Exxon Valdez specifically to prevent such occurrences.

Background on the Good Samaritan Law under the Oil Pollution Act of 1990 ("OPA 90")

Following the Exxon Valdez incident in 1989, Congress included a responder immunity provision in OPA 90 to protect from liability those individuals or corporations who provide care, assistance, or advice in mitigating the effects of an oil spill. As detailed in the OPA 90 Conference Report, Congress intended that responses to oil spills be immediate and effective, and noted that, without such a provision, the substantial financial risks and liability exposures associated with spill response could deter a prompt, aggressive response. This immunity does not prevent any injured party from recovering its full damages resulting from the spill incident, as OPA 90 provides that the responsible party ("RP") is liable for any of the removal costs or damages that a responder is relieved of pursuant to this immunity consistent with the OPA 90 "polluter pays" principle. This immunity does not apply if a responder acts with gross negligence or willful misconduct, or in cases involving personal injury or wrongful death.

Litigation against Good Samaritans as a Result of the Deepwater Horizon Incident

Following the Deepwater Horizon incident on April 20, 2010—which resulted in 11 deaths, injuries to 17 men working on the platform, the discharge of approximately five million barrels of oil, and required thousands of responders to work several months to contain and clean up under the challenging conditions—numerous claims and lawsuits were filed. Unfortunately, the OPA 90 standard specific to responders has proven inadequate to protect responders from becoming entwined in such suits. In these cases, plaintiffs have thus far been successful in maintaining their actions simply by alleging gross negligence (without...