As the BP civil trial got started this week, a government lawyer focused on a phone call and hour before the Deepwater Horizon rig exploded and argued that it showed how BP as a company was grossly negligent.
But this Justice Department civil lawyer appeared to be directly contradicting his colleagues in the department's Criminal Division, prosecutors who are trying to pin the blame for the April 20, 2010 explosion and subsequent oil spill on two particular BP employees.
The criminal indictment of BP's well site leaders, Robert Kaluza and Donald Vidrine, states several times that they accepted the results of a critical test of the well's structural integrity without consulting the higher-ups in Houston.
The implication is that these two rig supervisors went rogue and didn't check with their bosses when they made the critical mistake that immediately led to disaster.
The fact that they considered this important pressure test a success was, by almost all accounts, a deadly mistake. But the idea that they kept that decision to themselves and didn't check with their supervisors is contradicted by the record and by the Justice Department's lead civil attorney as well.
'The evidence will show that at 8:52 p.m., on April 20, less than an hour before oil and gas exploded in a fireball aboard that rig ... BP Senior Drilling Engineer in Houston, Mark Hafle, and its Senior Well Site Leader on the rig, Don Vidrine, had a telephone conversation,' said the Justice Department's Mike Underhill on Monday during his opening statements in the civil trial.
'They had a conversation that could have saved 11 lives, saved the Gulf, saved the people of the Gulf from a catastrophe, despite all of the BP failures that had happened ... on April 20, and in the days before.' (See trial transcript, pages 73-75)
'The United States Department of Justice is talking out of both sides of its mouth,' said Kaluza's defense attorney, Shaun Clarke. 'I mean the positions aren't simply inconsistent, their contradictory.'
The language in the indictment leaves a little room for interpretation. It says that Kaluza and Vidrine 'failed to call engineers on shore to advise them during the negative testing of the multiple indications the well was not secure.'
The records from investigators after the accident clearly show that Vidrine did call back to shore while the negative testing was going on, some time before 6 p.m., about four hours before the explosions. But the investigators did not find that Vidrine and Hafle talked about problems with the test during that first of two phone calls.
The indictment goes on to say that Vidrine and Kaluza 'accepted a nonsensical explanation for the abnormal readings, again without calling engineers on shore to consult.' Investigators' notes show that both Kaluza and Vidrine said they did talk about the anomalies in the test in the 8:52 phone call, about an hour before the explosions. But they also show that Hafle called Vidrine, not the other way around and Vidrine even says he wasn't sure why Hafle was calling back at that point.
Kaluza and Vidrine are charged with 22 counts of manslaughter, two for each of the men killed on the rig that day. They are also charged with criminal negligence in polluting the Gulf of Mexico.
The indictment says Kaluza and Vidrine were grossly negligent because they deemed the so-called 'negative pressure test' a success when the pressure readings they were getting should have clearly told them otherwise.
It appears the criminal prosecutors fell in line with BP's own internal investigation report, which also said Kaluza and Vidrine failed to consult with anyone outside their team about the problems they encountered in the hours before the rig blew.
It was the DOJ's Underhill who pointed out the contradiction in testimony from some of BP's own investigators. (See trial transcript, pages 1116-1129)
The investigators' notes say that Vidrine 'talked to Hafle about the 1400 (pounds per square inch of pressure on the drill pipe) -- said that if there had been a kick in the well we would have seen it.'
By the end of the conversation, Vidrine told Hafle he was comfortable that they had a successful test, in spite of the disturbing pressure reading. The investigators' notes say Vidrine talked about how the Transocean rig crew members were laughing at him for being so concerned. It was those crew members who died in the explosions who allegedly told Vidrine that something called the 'bladder effect' was the reason for the anomalous pressure readings.
Industry experts have testified that the 'bladder effect' or 'annular compression' is not a real phenomenon.
Records show that as they were having that conversation, the well began 'kicking' or 'flowing' with hydrocarbons. As the rig crew removed heavy drilling mud and replaced it with lighter seawater in anticipation of closing up the well, that's when the natural gas and oil were able to shot miles up to the rig, setting it ablaze.
David Uhlmann, former chief of the DOJ's Environmental Crimes Division and now a law professor at the University of Michigan, says different government lawyers can come to different conclusions, but they must fix the discrepancies.
'The government shouldn't be saying something in the civil case and saying something different in the criminal case,' Uhlmann said. 'It needs to correct that, and it can't do that going forward.'
Clarke said he can't believe the Justice Department simply got their wires crossed, though.
'That would be grossly negligent,' he said.
The Justice Department declined to comment for our story, saying it would make its arguments in court.