MR-Go gets ready to go to trial – Part 1: the Government’s seven motions in limine

Motion in limine (Latin: “at the threshold“) as in a motion filed by the opposing party when a policyholder is “at the threshold” of victory – or so it seems in Katrina insurance litigation. Simply, and accurately stated, however, a motion in limine is a pre-trial motion filed to exclude certain evidence at trial.order-and-reasons-summary-judgment-denied_page_12-3

Seven such motions have been filed by government attorneys representing the Corps of Engineers in the lawsuit that began as Robinson v Corps of Engineers and evolved into the Consolidated Katrina Litigation where it’s known as the MRGO case.

“What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.  It has become increasingly common, however, for litigants to utilize in limine motions for this purpose.”
( Amtower v. Photo Dynamics, Inc. (2008) 158 Cal.App.4th 1582)…

Plaintiffs’ attorney Piece O’Donnell expands on this point in the “blanket opposition” filed as Plaintiff’s Objections to Defendant’s Seven Motions in limine

The salutary purpose of a motion in limine is to streamline a trial by deciding certain evidentiary objections beforehand. It is not a vehicle to resolve disputed facts, to reconsider prior motions, or to contest the scope of damages. But this is precisely what Defendant is doing in its seven motions in limine. This piecemeal approach to litigating this case before trial is inappropriate.

As a further indication of this “peacemeal approach,” Plaintiffs separated the Defendant’s motions into two groups in the “blanket Opposition”.

Defendant’s seven motions in limine are in reality new and/or renewed motions for summary judgment. While some may fall into both categories depending on the issue, the motions can be can be generally classified into two groups:

[Defendant’s] New Motions for Summary Judgment:
• Exclude Evidence of Mental Anguish and Inconvenience
• Bar Introduction of Evidence of Alternative Methods of Hurricane Protection
• Bar Introduction of Evidence Concerning Breaches of the East Bank of the IHNC
• Bar Testimony of Injuries to Parties Other Than the Plaintiffs

[Defendant’s] Motions for Reconsideration of Denied Summary Judgment Motions:
• Bar Introduction of Evidence Related to NEPA Violations
• Bar Introduction of Evidence Which Removes The MRGO From Existence
• Bar Evidence of Damage Caused By The Design and Construction of The MRGO

The government attorneys respond for the Corps with a Consolidated Reply in Support of the United States of America’s Motions in limine.

Although they profess to be interested in “streamlining” the trial when it suits their
purposes, Plaintiffs “object” to the motions in limine filed by the United States, which are intended to exclude irrelevant, wasteful, and prejudicial evidence…
Plaintiffs’ primary argument is that the motions merely attempt to relitigate issues already presented in the Parties’ summary judgment papers. This is simply not true, as the only relief sought by the motions in limine is the exclusion of inadmissible evidence.

Plaintiffs also filed Opposition to each of the Defendant’s motions in limine:


As has been the case all along, the Plaintiffs are clearly in the position of threading their camel of evidence through the needle’s eye of allowable claims against the federal government.

What Plaintiffs appear to have done to respond to this challenge is approach the case – and the cause of the flooding –  from a No-MRGO position.  The government summarizes the issues:

The causation issue…like the issue before this Court, is whether the presence of the MRGO causes additional hydrodynamic effects which would lead to breaching.

Plaintiffs response is doubly flawed. First, in an attempt to avoid the FTCA’s discretionary function exception, Plaintiffs steer their case onto the shoals of the Flood Control Act. Plaintiffs’ theory is that evidence which removes the MRGO from existence is somehow relevant because the Corps, in planning the LPV, wrongly assumed that the MRGO would have no effect upon storm surge. But this theory merely underscore that any negligence on the part of the Corps in wrongly predicting the hydrological impact of the MRGO would be negligence in the planning and design of a flood control project, a claim that the Flood Control Act indisputably bars.

Naturally, the Plantiffs take issue with the government’s claim.

Tactically, the defendant attempts to blur the line between the discretionary function argument it has raised through numerous pleadings and the Plaintiffs’ burden of proof relative to causation. Therefore, the objective sought via a motion in limine is not served by defendant’s motion.

As this Court is aware, the March 20, 2009 ruling that the potential immunity associated with “the initial design and construction of the MRGO” was focused entirely on the decisions employed in the process of constructing the navigation channel.

Whether that conduct was ultimately harmful to the residents of southeastern Louisiana was immaterial to the defendant’s legal argument; the sole issue was the application of an exception to the Federal Tort Claims Act (“FTCA”) to “bar[] this action and require [] it’s dismissal for lack of subject matter jurisdiction.”

MRGO is seven days and many pre-trial issues away.

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