MR-GO gets ready to go – Part 2 – Duval’s Order on motions in limine gives plaintiffs green light to try their case

Breaking news of Judge Duval’s decision on the Government’s Motions in limine let readers know what happened but with little about the why.

Why is important.  So is understanding that winning a motion is no guarantee of winning a case.  Neither is winning six motions, six-and-a-half to be exact.  Instead, what Duval’s decision guaranteed is simply that pre-trial motions will not decide the major case before the trial begins.

For example, in denying the Motion to Exclude Evidence of Mental Anguish and Inconvenience, he wrote:

The United States argues that because none of Plaintiffs were present at or nearby to their respective properties, they would not be entitled to recover mental anguish or inconvenience. The Court agrees that generally this proposition is correct…Plaintiffs in their opposition memorandum do not dispute that statement of the law.

However, Plaintiffs argue…the law of vicinage applies. In the event plaintiffs were to prove that…“a plaintiff in a vicinage cause of action may recover damages for mental anguish, discomfort, irritation, anxiety, and loss of use and/or enjoyment of his property.”

The Court notes that the Government’s motion is actually in the nature of a dispositive motion, and the time for filing such has long since passed…Although the Court is certainly not convinced that the law of vicinage applies, Plaintiffs may introduce evidence that it does and the matter can be addressed in a Rule 52 motion or be briefed in the anticipated post-trial memoranda.

Wondering about the law of vicinage?

in the civil law of Louisiana : the neighborhood in which one is obligated not to cause material injury to others (as by a nuisance) in the free exercise of rights of ownership in immovable property vicinage are legal servitudes imposed on the owner of property — Rodrigue v. Copeland, 475 So. Second 1071 (1985)

Although Judge Duval’s decisions are always well reasoned, the Plaintiffs’ election to file a “blanket Opposition” can not be overlooked.  Strategically, it framed the issues in a way that supported their contention that each of the individual Motions in limine was premature at best.

In that light, consider Duval’s response the the Government’s Motion to Bar Introduction of Evidence of Alternative Methods of Hurricane Protection:

The Government in this motion seeks to bar the introduction of alternative methods of  hurricane protection. As the Court is certain that the Government will recall and as has been previously stated herein, the Court has denied the Government’s motion for summary judgment on the discretionary function exception.

There are questions of fact as to whether the decisions of the Corps regarding the MRGO and maintenance and operation thereof subsequent to its initial design and construction are protected by the discretionary function exception. This motion is another attempt to seek the Court’s reconsideration of its previous decision in a motion in limine.

Duval continued with a similar response to the Motion to Bar Introduction of Evidence Concerning Breaches of the East Bank of the IHNC; albeit, in this case, with the suggestion of mild irritation:

Once again in this motion in limine, the United States seeks summary judgment on an issue to be addressed at trial–that is whether the IHNC breaches were caused by the MRGO…In addition, in the United States’ reply brief, the Government states that “this court has already ruled that it is without jurisdiction to consider any cause of action concerning the breaches along the East Bank f the IHNC because Plaintiffs’ administrative claims failed to provide adequate notice…”

This statement is somewhat misleading. The issue before the Court in the ruling cited had to do with whether the Court would try the issue of the Government’s liability for the damages caused by its alleged failures with respect to Washington Group International, Inc.’s remediation of the EBIA. The Court found that the amendment to include that claim in this suit was untimely. That ruling did not bar adjudication of issues concerning the breaches along the IHNC as allegedly caused by the MRGO.

In the one motion in limine he granted in part, the Motion to Bar Testimony of Injuries to Parties Other Than the Plaintiffs, he followed his reasoning with what could be called a subtle warning: The Court will not allow the abdication of common sense in trying this very significant matter.

Given his reasoning, such a warning was appropriate:

In this motion, the United States seeks to exclude all evidence of injury or damages to parties and property other than Plaintiffs and their possessions. In this bench trial, the Court as well as the majority of the population of the United States realize that there was catastrophic property and personal loss in New Orleans and the vicinity.

Clearly this trial only relates to the damages suffered by the named plaintiffs, and the Court will not allow testimony as to specific damages to other persons. However, at the same time, in order to prove their case, Plaintiffs may certainly introduce evidence as to flooding and resulting damage to areas other than Plaintiffs’ specific properties.

Duval makes it equally clear, he also expects common sense to apply to challenges to issues addressed in his previous opinion on the governments discretionary function exemption such as those raised in the Motion to Bar Introduction of Evidence Related to NEPA Violations:

As noted in the Court’s lengthy opinion denying the Government’s Motion for Summary Judgment based on the discretionary function exception…there were numerous documents generated by the Corps itself and others over a substantial period of time indicating that the MRGO was having a substantial effect on the environment. Therefore, the very purpose for an EIS or SEIS would relate to the effects on the environment caused by the MRGO…

[T]the Court analogizes an EIS provided to Congress under the NEPA mandate in the nature of a warning, that is that an on-going project was having substantial negative effects on the environment. The Court could apply the general presumption employed in a failure to warn negligence cases that Congress would heed the warning and take whatever steps were necessary to rectify the deleterious effects upon the environment and to take measure necessary to protect the property and people in the area…

The Court will have to determine after trial on this matter as to if, or when, an SEIS should have been filed…if the Court finds that an SEIS should have been provided to Congress, the Court must also make a finding as to when it should have been presented to Congress. After that finding is made, if indeed it is, then the Court can appropriately assess the time factor raised by the Government. In any event, this motion is of the nature of a dispositive one the deadline for filing of which has long passed. These filings are more appropriate pursuant to Rule 52 or post-trial briefing.

Judge Duval’s response has been “usual” up to this point.  However, his response, like the matter at issue in the Motion Bar Introduction of Evidence Which Removes The MRGO From Existence, goes a step beyond the “usual”.

The premise of this motion is that the Court has found that the original design and construction of the MRGO are not actionable herein as a result of the discretionary function exception. The Government argues that since its existence is not actionable, there should be no evidence which removes it from existence. The Court finds this argument a facile and somewhat surrealistic contention.

A substantial part of Plaintiffs’ case concerns alleged acts and omissions subsequent to the construction of the MRGO. To comprehend the present, one must comprehend the past.

This exercise is common in virtually all disciplines–history, science, literature and the law. In other words, to understands how we got to the present with respect to the MRGO, we must start before the MRGO existed. It is the Court’s understanding that some of Plaintiffs’ models have at their foundation the area as it existed prior to the MRGO. The time continuum at issue in this case begins prior to the MRGO and ends with Hurricane Katrina.

Judge Duval was back to the usual with his decision on the Motion to Bar Evidence of Damage Caused By The Design and Construction of the MRGO.

The Corps persists in its argument that “the superficial widening of the channel, the changes in wetlands, and the supposed impact on the Lake Pontchartrain and Vicinity Hurricane Protection levees are all consequences of the design decisions. The United States cannot be held liable for the consequences of these decisions” … This argument is simply re-urging the Government’s contention that it is immune. The Court has found there are questions of fact and it will not at this juncture revisit this argument under the guise of a motion in limine.

Twice last year, I found myself lost in the maze of cases that make up the Katrina Canal Breaches Consolidated Litigation – the second time it took Sop and several readers to help me find my way out.  Despite the embarrassment, the unexpected places I found myself gave me a close-up view of Judge Duval’s thinking and a great deal of respect for his work.

The work I respect most is his preparation – the untold hours he has spent developing an unrivaled command of the knowledge base needed to make a just and lawful decision – one he clearly intends to stand up to the certain review to follow.

To comprehend the present, one must comprehend the past – and that he does.

5 thoughts on “MR-GO gets ready to go – Part 2 – Duval’s Order on motions in limine gives plaintiffs green light to try their case”

  1. The entire concept of the Flood Control Act of 1928 giving the COE immunity in damages caused by levee failure seems to hide the fact that in 1944 33CFR 208.10 was attached to local operation of a flood control project by the local sponsor. This document covers all aspects of levees, floodwall, pumping stations, required inspections, repair, replace, rehabilitation, modification and maintenance of all the above. It is further used as a reference in other Department of the Army Engineering Manuals and Regulations that spell out the responsibilities of the COE & DA with respect to the local sponsors activities.

    If you take the time to read these documents, you will see that the immunity was lifted from the COE for their projects and only still covers levees/floodwalls constructed by citizens and others that were not taken over by permits issued for them from the COE. This law cites itmes and procedures that if followed would have eliminated much of the flood damage to New Orleans and East Jefferson [which was never allowed to sue]and the locals and the COE responsibilities would have resulted in payment for claims for almost all of the damages.

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