As discussed in Part II, Chris McIntyre’s device, or one strikingly similar to it (a ventable valve landed on the flex joint flange above the LMRP), was in fact used to stop the flow of oil from the Macondo Well on July 15, 2010, 87 days after the Deepwater Horizon blowout. There is also no debating that the device did not exist prior to April 20, 2010, the day of the catastrophic fire and explosion. BP itself agrees that it was conceived at some point after April 20. But when?
Muddy … err oily … waters
In Christopher McIntyre v. BP Exploration & Production, we assert that it was Chris McIntyre who first developed the design and shared same with BP on May 14, 2010. BP, on the other hand, says its employees came up with the idea before McIntyre did – sometime after April 20 but before May 14 – yet evidence supporting the company’s position is scant. In fact, if one scours the various post-incident reports, filings, BP’s felony guilty plea allocution, settlement agreements and Clean Water Act trial transcripts, there are photographs with dates that seem to be in error and contradictory testimony from various witnesses which call into question the temporal origin of the device.
Now, while one could say that such inconsistencies are the result of the fog of war that was the Deepwater Horizon litigation, the fact remains that this very specific question – who invented the device that saved the Gulf? – has never been asked to anyone under oath or considered by a jury. The 2013 Clean Water Act trial in New Orleans was more concerned with why the disaster happened in the first place and how much oil actually spilled, not who owns the intellectual property rights to the device used to finally stop the flow.
Chris McIntyre deserves his day in court. He welcomes the scrutiny of a jury, as Chris, presumably like BP, simply wants to know the truth. At present, we have many questions that only BP can answer.
Why do some BP employees and others who worked the spill response say the device was not contemplated prior to May 15, 2010 (consistent with McIntyre’s May 14 correspondence), while others at the company indicate the design was first considered on April 27, April 30, May 1, May 5 or May 6? From Trevor Smith, head of BP’s “Connections Team”:
Yet during the same trial Mr. Smith said the following:
Further, in preparation for his testimony at the Clean Water Act trial, Mr. Smith prepared the following timeline which indicates that the device, also known as a “Transition Spool,” was first contemplated on May 1:
But Robert Turlak, of rig owner Transocean, testified that he first became aware of the design (referred to below as the “venting option”) on May 15. This would make sense as McIntyre proposed the same design the day before, on May 14:
A picture is worth many millions of dollars
During Trevor Smith’s Clean Water Act trial testimony he referenced this photograph, purportedly taken on May 9, 2010, of a completed Transition Spool (similar to what McIntyre proposed on May 14).
But, referencing Mr. Smith’s Clean Water Act trial timeline which was entered into evidence, Smith himself indicates that the Transition Spool was not manufactured until May 18:
Finally, in a presentation given to company and government officials on May 23, 2010, Mr. Smith provided the following slide which depicted the various devices which had been developed to-date by the many spill response teams. Strangely, though the Transition Spool was by far the most promising, and was in the end the only device used to stop the flow, it is not shown, even though BP has a photograph of the completed Transition Spool from May 9?
All of these contradictory statements, conflicting documents and images must be resolved. Were photographs backdated to make it appear that BP came up with the device in question before McIntyre did? Or were these simply honest errors made in the heat of a disaster? The United States Court of Appeals for the Ninth Circuit should remand this case for discovery and if need be, trial.
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.