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The BP oil spill is on its way to becoming what some say will be the most massive tort litigation ever. And as both sides lawyer up - as they say -they're also trying to hire the best and brightest scientists to help make their case. But as NPR's Tovia Smith reports, that's raising concerns.
TOVIA SMITH: As soon as the magnitude of the Gulf oil spill became clear, it was all hands on deck.
Professor ANDY NYMAN (LSU): This is a black mangrove. Their distribution and range has expanded over the best 20 years to coastal Louisiana. You wouldn't have seen this 20 years ago.
SMITH: For months now, local scientists like LSU wetlands expert Andy Nyman have been out on Gulf waters advising the clean-up and measuring the damage.
Prof. NYMAN: Some of the carbon being photosynthesized by some these marsh grasses today will be part of a menhaden that will end up in a piece of chicken that you then cook on your stove.
SMITH: But there is growing concern that some of the best minds are being sidelined since they've signed on as paid consultants to BP.
Professor RICHARD SHAW (Louisiana State University): Everybody is arming up for the big day in court.
SMITH: Richard Shaw, director of Louisiana State University's Coastal Fisheries Institute, is one of many concerned that BP is buying up of too much of the region's brainpower.
Prof. SHAW: You would think you would bring all the intellectual resources to bear. It's pretty frustrating.
SMITH: Shaw says he has not been approached by BP, but many colleagues have.
Dr. BOB SHIPP (University of South Alabama): I got a phone call from some lawyers representing BP...
SMITH: University of South Alabama's Bob Shipp says BP's lawyers tried to hire his whole department of marine sciences to do research for them. Under the deal, the scientists could only disclose their results if BP said so -otherwise they'd have to keep it secret for three years.
Dr. SHIPP: They wanted the oversight authority to keep us from publishing things if, for whatever reason, they didn't want them to be published. People were muzzled - as part of the contract they were muzzled. And certainly it's not something that we could live with.
SMITH: But other professors did accept BP offers at LSU, Texas A&M and the University of Southern Mississippi. After a blast of public criticism, however, the Mississippi professors had a change of heart and backed out. They declined to comment.
It's touchy - not just because of the academic integrity issue but also public opinion.
Prof. NYMAN: I am a little concerned about everyone hating me if I was working for BP, so....
SMITH: LSU wetlands scholar Andy Nyman chose instead to work for a lawyer suing BP. His deal calls only for expert testimony - not research - and he's not subject to any hush clause. But, Nyman says, he can only surmise how many others are, either for BP or the government agencies who will oppose them in court.
Prof. NYMAN: I'm guessing from the volume of people who are wetland experts that you do not hear from in the press right now that everyone but me is locked in.
SMITH: BP declined to be interviewed for this report, but in a statement BP says its deals vary from large no-strings-attached grants to universities to, quote, "scientific experts for the purpose of litigation that need to be confidential."
Dr. MARK DAVIS (Tulane Law School): It's the way things work. I mean, it happens every day and no one should be surprised.
SMITH: Mark Davis heads Tulane Law School's Institute on Water Resources, Law and Policy. In some ways, he says, BP is doing what other oil, tobacco and pharmaceutical companies have done in the past by hiring scientists to do research they want kept secret. But, he says, in a case like this, the public will pay a big price if BP can constrain the free flow of scientific data.
Dr. DAVIS: When the best fishery scientists actually may have evidence that would work against you but they're not able to present it to the other side or to the public, well, then you've essentially bought some silence.
Mr. ROBERT WIYGUL (Attorney): It's a cagey legal strategy, but I do think it's a problem from the public standpoint.
SMITH: That's attorney Robert Wiygul, who represents fishermen, businesses and environmental groups who are suing BP. He says the public interest really depends on access to a relatively small pool of specialists.
Mr. WIYGUL: When you talk about the red snapper fishery or black mangrove swamps, there may be half a dozen people who fully understand those resources and there needs to be full exchange of data so that we can all understand what happened to these public resources.
SMITH: To many in academia, an underlying problem is the lack of other options for research. Shaw says universities have all but cut back and federal grant money has all but dried up.
Prof. SHAW: There's a bunch of frustration. I mean, believe me, everybody - all the scientists want to get out there and contribute, for crying out loud. I mean, this is in our backyard. And so we're sitting there chafing at the bit, trying to get into the mix.
SMITH: It only makes a lucrative offer, like those from BP, Shaw says, all the more enticing.
Tovia Smith, NPR News, New Orleans.
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