Rig workers who pleaded the Fifth settle with Transocean

Steve Korris Nov. 1, 2011, 11:26am


NEW ORLEANS (Legal Newsline) - Deepwater Horizon rig owner Transocean and five workers settled personal injury suits that the workers undercut by pleading Fifth Amendment privilege against self incrimination.

Jason Itkin, of Arnold and Itkin in Houston, reported the settlement to U.S. Magistrate Judge Sally Shushan on Oct. 21.

Transocean had moved in August to dismiss claims of Bill Johnson, Allen Seriale, Andrea Fleytas, Stephen Bertone, and James Ingram.

Transocean also sought relief from any obligation to continue making maintenance and cure payments to them.

Transocean lawyer Kerry Miller of New Orleans alleged they hid behind the Fifth Amendment to avoid answering questions about their injuries.

Miller wrote that a Department of Justice investigation of last year's explosion "caused the specter of criminal charges to hang over the heads of certain individuals."

He wrote that there was no basis to believe answers to questions regarding personal injuries might tend to incriminate the five.

He wrote that they misused the Fifth Amendment, "unless plaintiffs have engaged in criminal activities that are somehow related to their receipt of maintenance and cure."

He wrote that they asserted the Fifth Amendment scores or hundreds of times.

Johnson, 10 other workers, and three survivors of workers who died in the explosion filed suit at district court in Galveston County, Texas, 23 days after the explosion.

They sued Transocean, rig operator BP, cement contractor Halliburton, blowout prevention contractor Cameron International, and Sperry-Sun Drilling Services.

In the complaint, their lawyers identified Johnson as a Louisiana resident and a deck pusher who supervised the late Aaron Burkeen.

They wrote that Johnson inhaled smoke as he rushed to get his crew to life rafts.

"Sadly, Burkeen was one of Johnson's best friends and Burkeen was the only man lost from Johnson's crew," they wrote.

"Once they pushed off, the company refused to take Johnson and others in for help.

"Instead, the company made the decision to keep these men there for over 10 hours alongside the blazing rig as the men stared at the rig knowing their friends were on it."

They claimed severe injuries to all plaintiffs but didn't describe any except the sister's emotional distress.

Cameron International removed the suit to federal court, and multi district judges in Washington transferred it to U.S. District Judge Carl Barbier in New Orleans.

Shushan assists Barbier in presiding over hundreds of Deepwater Horizon suits.

Seriale sued the same defendants in Galveston County in August 2010.

His lawyers identified him as an assistant driller residing in "another state."

They claimed he was "critically injured, both physically and mentally."

Cameron International removed his suit to federal court, and the multi district judges transferred it to Barbier.

Fleytas, Bertone and Ingram sued BP and Halliburton this April, in New Castle County Superior Court at Wilmington, Del.

Their lawyers declared Delaware jurisdiction proper because both defendants were Delaware corporations.

They identified Fleytas as a dynamic positioning officer from California, Bertone as an engine room worker from Mississippi, and Ingram as a supply worker from Mississippi.

They sought damages for severe injuries under the Jones Act, which provides state court jurisdiction for injuries to seamen.

They warned that they would seek sanctions against anyone who removed their cases to federal court.

BP removed their cases to federal court in Wilmington anyway, claiming plaintiffs fraudulently tried to defeat federal jurisdiction by failing to sue Transocean as their true Jones Act employer.

In a procedural maze, Transocean moved to dismiss their claims in New Orleans while the claims remained pending in Wilmington.

Multi district judges caught up, transferring the cases to Barbier on Oct. 11.

Louisiana Attorney General Buddy Caldwell appealed Shushan's order to Barbier on Oct. 31, calling it unreasonable.

"Louisiana has faced budget challenges over the past two years, and any extraordinary expenses must be justified," Caldwell wrote.

"State law also imposes other auditing and procurement constraints.

"Within these constraints, the state is responding to the discovery propounded, while also upholding the obligation to maintain critical services to the public.

"Even using emergency procurement procedures, it still took approximately two weeks, and several meetings, to identify a source of funding for this contract.

"BP sought to impose discovery obligations on the state of Louisiana that are premature and unwarranted in light of their expense.

"The state of Louisiana has fully complied with legitimate discovery responsibilities but believes that the obligations currently being required of the state are unduly burdensome and not justified under the federal rules of civil procedure."

He wrote that inability to complete electronic searches within Shushan's timelines didn't warrant monetary sanctions, let alone dismissal of the state's claims.

He wrote that compliance necessitated hiring an outside vendor.

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