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Jul 1, 2011

BP's Ex Chief and Plaintiffs' Lawyers Spar Over Safety (The New York Times)

Featuring: Robert T. Cunningham

By: John Schwartz 

In testimony before Congress last summer, Tony Hayward, then BP’s chief executive, asserted that his company was conducting a “full and comprehensive” investigation into the causes of the Deepwater Horizon disaster that killed 11 rig workers and spewed millions of gallons of oil into the Gulf of Mexico. He said BP had put in place a sweeping new safety system throughout the company in the wake of lapses in 2006 and 2007. 

Last month, however, in grueling depositions in London with lawyers suing BP, Mr. Hayward was challenged on his assertions that the company’s safety overhaul was comprehensive and fully carried out. The plaintiffs’ lawyers argued that the company’s investigation did not examine the role of BP’s top officials in setting the tone for a safety-oriented culture, nor had the safety program been fully under way for drilling rigs in the gulf. 

In hundreds of pages of Mr. Hayward’s depositions, Mr. Hayward, whose public handling of the April 2010 spill was roundly criticized as clumsy, rejected every contention. But the questions suggest lines of attack that could eventually be used in the many lawsuits consolidated in a federal courtroom in New Orleans, including accusations that the company’s former chief executive lied to Congress. 

Robert T. Cunningham, an Alabama lawyer who led off the two-day deposition with a confrontational style, pressed Mr. Hayward to admit that the company’s inquiry into the disaster was incomplete. While BP’s team examined immediate causes and events leading up to the blast on the rig itself, it did not include what Mr. Cunningham referred to as “root causes,” those involving management and corporate culture, and which the company’s own policies call for after major accidents. 

Mr. Cunningham insisted that the BP inquiry constituted only “two-thirds of [your] standard investigation.” 

Mr. Hayward acknowledged that the initial investigation “did not look at the overarching management process at that time,” but he bristled at the suggestion that the investigation was incomplete. 

“This was an investigation that was open, transparent, it was communicated as soon as we had the results,” he said, adding with a touch of acid, “in stark contrast to anyone else involved in this accident.” 

Lawyers for BP and Mr. Hayward raised objections to the tone of nearly every question — more than 400 objections in the first day of depositions alone. In many of Mr. Hayward’s responses, he said he did not remember certain incidents, argued that he had not been involved in an issue at the level of decision making, or that incidents had occurred after his departure from the company. And many times, he declined to answer questions that he said would call on him to speculate. Mr. Cunningham asked Mr. Hayward how his appearance before Congress was received within the company. “Did your P.R. people congratulate you on how you did after your testimony was concluded?” 

Mr. Hayward responded: “No one congratulated me after that day. Thank you very much.” 

Much of Mr. Cunningham’s questioning involved Mr. Hayward’s testimony that BP’s safety program, known as operating management systems, or O.M.S., covers “all of the company’s operations.” 

In fact, the plaintiffs’ lawyers pointed out, the program was being rolled out in stages and had not yet been fully put in place in gulf facilities. Mr. Hayward answered that the company had been making safety a high priority in many ways, and that “It wasn’t as if there was nothing prior to O.M.S.” 

Scott Dean, a spokesman for BP, said that the deposition was “just one of the hundreds of scheduled depositions to be taken as part of discovery in this case.” As for the acrimonious tone, Mr. Dean said: “The back and forth among the lawyers is typical of civil depositions where the lawyers know that their questions could be excluded from trial by the court because they are entirely improper, wholly irrelevant, or have no basis in fact. In the end, the court will decide the case based on the evidence presented at trial, not the questions or cross talk of lawyers or snippets of testimony from any single deposition.” 

Another contentious line of questioning involved BP’s expenditures on safety; Mr. Cunningham argued that cost cuts at BP had raised risk, but Mr. Hayward countered that whenever he spoke, he would emphasize that “reliable operations come first, whatever the cost” — and insisted that the corporate budget-cutting affected operations, not safety. 

But Mr. Cunningham scoffed, “If the first words out of your mouth every time you open it were ‘I am Superman,’ that wouldn't make you Superman, would it?” 

To which a lawyer for BP responded, “Objection to form.”

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