THE BLOG
11/19/2012 03:47 pm ET Updated Jan 18, 2013

Some Claimants Opt Out Of Proposed BP Medical Settlement

This article was published in The Louisiana Weekly in the Nov. 19, 2012 edition.

A medical portion in the proposed, $7.8 billion class-action settlement with BP will satisfy some residents who became ill from the 2010 spill but hundreds of others opted out because the agreement doesn't cover their chronic ailments and sky-high expenses. They'll sue the company instead. U.S. District Judge Carl Barbier, who oversees spill claims, held a fairness hearing on the settlement on Nov. 8 in New Orleans. The deal requires his approval.

Separately, BP last Thursday agreed to pay $4.5 billion to settle federal, criminal charges in the disaster that left eleven people dead.

Jorey Danos, a cleanup worker in the spill, explains why he opted out of the medical settlement. He said "the maximum anyone can receive is $60,700, and I already have $10,000 in medical bills and can't work because of my spill-related illness." The deadline for opting out was November 1.

What made Danos, a Thibodaux resident, so sick? In 2010, he was a metal fabricator but accepted a higher-paying job through a friend to do BP-oil cleanup. "I was paid $300 a day to work on a boat enrolled in BP's Vessels of Opportunity program," he said. "We worked 21 days out and 7 days in, skimming oil on the perimeter of the spill." He cares about the coast and was eager to get into the water to help.

His enthusiasm soon waned, however. "On the boat, we were were in contact with oil, and the Corexit dispersant sprayed from the air to break up the oil blew into our boat," he said. "The gloves we were issued were like something from a discount store, and they didn't last long. I started getting rashes, boils and headaches. But at the time, I wasn't sure if it might have been from the sun. The money was good, and I had my wife and four kids to support."

After doing cleanup for nearly five months, his physical symptoms worsened and Danos developed neurological problems. "I'm full of benzene and I look like the walking dead," he said last week. He's lost forty pounds, has joint and abdominal problems, headaches and insomnia, and his speech is slurred. "I also have spasms, seizures and I've become lactose intolerant and hypoglycemic. I've had a number of brain probes and other tests. I need to lie down a lot."

Danos is a patient in Dr. Mike Robichaux's spill-detox program in Raceland in Lafourche Parish, and takes vitamins, including niacin, and exercises. He often spends more than four hours a day sweating out toxins in a sauna. His condition has stabilized somewhat but it's nowhere near normal. "I'm only 32 years old but I can't work now," he said. "I did manage to qualify for Social Security. I try to do yard work but I run out of energy fast so my wife has to mow our lawn."

Danos said "the health settlement is okay for people who aren't seriously ill and for somebody on the coast who want to pick up a quick buck, but to me it's a crock." The agreement doesn't take chronic illnesses from BP's oil and dispersants into account, he said.

Last week, attorney Robert McKee with Krupnick Campbell in Ft. Lauderdale, Fla., said the maximum an injured cleanup worker can receive under the proposed medical settlement is $60,700 and the most that injured residents in designated Zones A and B near the coast can get is $36,950.

In the Nov. 8 fairness hearing, Judge Barbier asked McKee and another attorney to explain what they saw as unfair about proposed compensation under the Specified Physical Conditions Matrix, used in the proposed settlement.

Last week, McKee noted that according to the matrix, acute or chronic physical conditions must have occurred between 24 and 72 hours after exposure to spill-related chemicals for compensation and must have been documented. "That's a weakness of the settlement because documentation can be difficult for those without health insurance or access to a doctor," he said.

And he said "if symptoms arose an hour or more after the settlement's required time frame, injured victims receive nothing. They also lose the right to litigate their injuries if they don't opt out of the settlement."

McKee said "the proposed medical settlement is narrow, and doesn't cover people who were seriously affected with bona fide injuries caused by spill but who couldn't get immediate medical attention."

He continued "people who had documented, temporary complaints are covered, however." He said that someone who lived near an oiled Gulf beach and developed a complaint like a rash could receive up to a few thousand dollars under the proposed settlement.

But based on what's been proposed, settlement money that will go to those who paid for their medical care--or who got their insurance company to pay for it--probably won't cover what was spent, much less compensate for the suffering and aggravation their injuries caused, McKee said.

At the fairness hearing, "the court, BP and Plaintiffs' Steering Committee spokespersons admitted that people with serious conditions don't really fit into the current, class settlement format," McKee said. "They would have had to opt out of the settlement to find adequate compensation through litigation." And they had to opt out by submitting a form.

The court-appointed Plaintiffs' Steering Committee or PSC is a group of attorneys representing private claimants.

"The settlement may be approved by Judge Barbier soon but it will have to go through an appellate process," McKee said. "It could be several years before anyone who wants to settle in the medical class gets paid."

He continued "we have a number of clients who opted out, who are suing BP in court, and they might actually be compensated faster than those participating in the class action."

McKee said the size of the medical class in the proposed settlement is a matter of debate. "BP says the medical class is as many as 200,000 people but hasn't provided evidence for that figure. Given the number of cleanup workers in the VoO and the numbers living near the coast, combined with time limits on symptom expression and limited types of illnesses included, the medical settlement class is probably only several thousand people." The class would have been bigger if more injuries and longer periods for the revelation of symptoms were allowed.

At the fairness hearing, McKee said he reminded the court that "under federal admiralty law, people who work on vessels, including those doing cleanup, are entitled to compensation." Last week, he said "this settlement doesn't fairly and adequately compensate them. It doesn't provide for their long-term medical care or lost wages. The court needs to push the parties to craft this settlement to meet those ends, and we hope that the judge will do that before approving the settlement."

Medical practitioners are concerned about the settlement's terms. Dr. Mike Robichaux sent a letter to Judge Barbier on Sept. 7, commenting on the settlement and saying that major, chronic symptoms suffered by spill victims had been left out of the health matrix. He said the PSC chose some less significant conditions, such as corneal damage, as chronic symptoms. "I have not seen a single person with damage to his or her cornea" from the spill, he said. Robichaux has treated over a hundred cleanup workers, fishermen and coastal residents sickened by BP's disaster.

In his letter, Robichaux said the chronic conditions of those opting out of the class action are probably quite different from the chronic ailments alleged to exist among class-action members.

Last week, Robichaux said the patients he's treated because of the spill have serious, chronic issues--including abdominal pain, muscular and joint pain, headaches, memory loss and extreme fatigue. He said "BP and the PSC are able to placate some people who are ill with minimal compensation without acknowledging the serious problems that victims of the spill are actually experiencing."

Robichaux also said last week "I have never seen this complex of symptoms in my 40 plus years as a physician. The symptoms of these patients are identical in Florida, Alabama, Mississippi and Louisiana. In the real world of medicine and sickness, there is an overwhelming likelihood that all of these problems are caused by the same agents."

In his Sept. 7 letter to Judge Barbier, Robichaux said that the zones used to include people eligible for BP compensation were somewhat difficult to interpret and probably unfair. That's because a resident could have been sickened from oil exposure but might live outside the zones."Location eliminates a large number of ill individuals with significant problems," he said. "I suspect there are almost as many ill individuals who don't qualify because of their location as there are those who do qualify."

At the fairness hearing, several people from the coast were unhappy about how they were treated, Danos said. "After spending the day sitting in the courtroom and listening, I was snatched by a federal marshal when I left the building that afternoon," he said. "The marshal took me inside and interrogated me for awhile about why I was there. I told him all about my health situation, and he eventually lightened up and gave me his card."

Danos said "after everything I've been through since the spill, I'm not afraid of federal marshals, the Dept. of Homeland Security or BP. Cockroaches are the only thing I'm still frightened of."

Cherri Foytlin, a Gulf Coast community activist from Rayne in Acadia Parish, said on the afternoon of the hearing she was removed from the courtroom, where she was sitting, on the pretext that she was live-streaming audio of the proceedings--something she denies doing. Foytlin said "I believe we were targeted by U.S. marshals and by court house security at the request of BP and others." From what she could gather, court security guards had a list of people considered to be risks and she was on it.

Kindra Arnesen, the wife of a commercial fisherman, and Michelle Chauncey, a former seafood vendor, were also asked to leave the courtroom. They are south Louisiana residents who attended the hearing because their family members have spill-related ailments.

As for the settlement agreement, Foytlin said there will be winners and losers. "But the people of the Gulf Coast have lost in that their voices have been muted," she said. "A foreign corporation has been allowed to run roughshod over the future of our health, ecosystem and industries."

Meanwhile, McKee is concerned about his clients, and wonders "if this court will punish opt-outs from the settlement by not sending them back to their home courts for trial. All of my cases were filed in Key West, and no claimants other than mine filed there. A transfer of my opt-out clients would put us in a Key West court that has less than 500 claimants."

McKee believes justice might be served more swiftly for his opt-out clients and they could be paid for damages faster if a transfer is allowed. "But no one gets a trial where they filed originally unless Judge Barbier's court allows the transfer back," he said.

On the opposite side of the fence, for people wishing they hadn't opted out of the settlement by the early November deadline, a motion was filed last Wednesday asking Barbier to extend the time for opting back into the settlement to Dec. 15.

Regarding BP's $4.5 billion settlement on federal criminal charges last week, Governor Bobby Jindal said Thursday "the impacts of this spill continue to accrue on a daily basis in our state." He said the biggest, criminal fine in history was levied against BP, fitting the negligence that led to the spill, and the state will hold the company fully accountable for its remaining liabilities.

McKee said "trial pressure in multiple venues is the hammer which drives BP to want to conclude by settlement." BP thinks it can get off more cheaply with any settlements it can forge than through litigation. end