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Gulf oil spill: How much flowed? BP trial judge to decide. (+video)

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“BP pressed ahead and falsely claimed that [top kill] was a slam-dunk. It failed, just as its outside consultants had predicted,” plaintiff attorney Brad Brian said Monday.

In court filings, BP insists that the unprecedented nature of the disaster forced the company to try measures whose outcomes were impossible to predict and involved a high level of risk. They also say that higher estimates used in company modeling efforts were meant to evaluate worst-case scenarios. A “capping stack” – essentially, a device that could be placed atop a counterpart that failed – was not ready for installation before the top kill experiment, they add.

On Monday, BP attorney Mike Brock said the company “made reasonable engineering decisions based on what was known along each step of the way. That’s not fraud. That’s not gross negligence.” BP spent more than $1.6 billion to cap the well, Mr. Brock added.

“It defies common sense to accept that BP would undertake to execute a top kill procedure knowing that it would not work,” he said.

BP is in “a difficult position” due to evidence that suggests it was aware of the contradictions in its flow rates, says Montré Carodine, a law professor specializing in evidence and transnational litigation at the University of Alabama School of Law in Tuscaloosa.

“There seems to be evidence to suggest they haven’t been truthful about how much oil was flowing, or that they changed their story as to how much. Their actions suggested it was much more than they argued, so now they seem disingenuous at best,” Professor Carodine says.

In January as part of criminal proceedings, BP pleaded guilty to 11 felony counts of misconduct and negligence related to the 11 deaths, as well as one misdemeanor count under the Clean Water Act and one misdemeanor count under the Migratory Bird Treaty Act. It also pleaded guilty to one felony count of obstruction of Congress, related to incorrect flow rate estimates given to members of Congress in the first 14 days of the disaster.

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