After weeks of testimony, and dramatic “reveals” of newly discovered evidence that had been hiding in labs for years, the Phase One trial of the BP litigation finally came to an end late last month. Now the parties must submit their briefs and make their final arguments to the court by June 21, 2013.

At the conclusion of trial last month, Judge Barbier issued the post-trial briefing order, setting forth the usual information, such as page limits and deadlines for filing briefs and responses. However, he also provided some suggested topics of discussion for the parties to address in their briefs. Although not required, the court “believes it would be helpful” if the parties addressed these issues.

What is interesting, and perhaps telling, is the focus on gross negligence in proposed topics of discussion. The court would like for the parties to discuss, among other issues, the standards for finding “gross negligence” or “willful misconduct” under the Clean Water Act, 33 U.S.C. § 1321 (“CWA”), and the Oil Pollution Act of 1990, 33 U.S.C. §2704 (“OPA”); the standard for a finding of punitive damages under general maritime law, and how it may differ from the CWA or OPA; whether an act or omission that is not itself causal of the accident can still be considered in determining whether a party engaged in conduct constituting gross negligence; and whether compliance with applicable regulations preclude a finding of gross negligence, regardless of whether a defendant knew or should have known that its conduct or equipment was unsafe.

Gross negligence is particularly important in this litigation to the defendants, for a number of reasons. OPA provides for certain limits on liability depending on whether the instrumentality from which the oil is discharged is a “vessel” or an “offshore facility.” 33 U.S.C. § 2704(a)-(b). What could be detrimental for the defendants here is, if the incident was proximately caused by the gross negligence or willful misconduct of the responsible party, the limits of liability are not available. 33 U.S.C. § 2704(c). Under the CWA, the civil penalties are greater if the violation was caused by the gross negligence or willful misconduct of the owner, operator, or person in charge. 33 U.S.C. § 1321(b)(7)(D). Gross negligence should also play a part in a punitive damages analysis, which the court has already held may be available in this litigation. In Complaint of Merry Shipping, 650 F.2d 626 (5th Cir. 1981).

Although we don’t know how the judge will ultimately rule, gross negligence of one or more of the responsible parties certainly is at issue. The damages in this litigation will be very high, and the exposure for the responsible parties increases exponentially if the court finds gross negligence or willful misconduct. Briefing should be completed by July 12, 2013, and everyone in the Gulf South will be waiting on pins and needles to see not only how the court handles this complex trial, but the sums of money that will be awarded as a result of this tragic incident.