SLABBED Daily – April 24 (a MRGO update)

Did you ever think you’d read a motion where the judge was asked to make one of the parties stick to their story?

I’d never heard of such until I read Plaintiffs’ Memorandum to Prevent Defendant Pinocchio’s Nose from Growing – shown on the MRGO Docket as Plaintiffs’ Memorandum to Prevent Defendant from Seeking to Prove the LPV Structures Were Not Properly Designed and Constructed and Did Not Perform as Expected.

Plaintiffs request that the Court not permit the Defendant to alter its consistent position throughout this litigation that the LPV structures were not negligently designed, constructed, or  maintained and that they performed as expected.

Recently, the Government has claimed that only “bigger, stronger levees” would have prevented this calamity.

This appears to be a poorly disguised, 180-degree reversal prohibited by settled judicial estoppel principles. If the Government is doing an about-face, this Court should bar such gamesmanship and preclude any argument or evidence—whether by affirmative proof by defense witnesses or cross-examination of Plaintiffs’ experts—that the LPV structures were defective or did not perform as expected.

In a footnote to this text, the Plaintiffs provides documentation for their claim by quoting from page eight (8) of Defendant USA’s Trial Brief.

“The only way in which the catastrophic flooding of the Lower Ninth Ward, St. Bernard, and New Orleans East could have been avoided would have been through the construction of a better hurricane protection system. . . . This breach [in the New Orleans East Back Levee] could have been prevented only by the construction and maintenance of a stronger, more resilient levee. . .Bigger, stronger levees along the GIWW, the MRGO, and the IHNC could have prevented floodwaters from inundating Plaintiffs’ properties.”

Returning to the motion, Plaintiffs reveal the urgency of the matter.

Most immediately, Plaintiffs seek to preclude any cross-examination of their expert Dr. Robert Bea who will testify on Friday. During the 702c proceedings, Dr. Bea prepared reports discussing the design and construction of the LPV structures along Reach 2—what he termed EBSBs (earthen berms/spoil banks)—in support of Plaintiffs’ motion for summary judgment.

Plaintiffs anticipate that defense counsel will seek to examine Dr. Bea about those reports and the putative defects in the Army Corps’ LPV structures. This area of inquiry should be declared off limits.

Dr. Bea’s research was the subject of several pre-trail motions that I’ll add in an update.  The Robinson Plaintiffs make strong arguments in support of their motion and also put Dr. Bea’s research in context:

At no time in this litigation have Plaintiffs maintained that the catastrophic flooding of their property was attributable to the negligent design, construction, or maintenance of the LPV structures. Nor have Plaintiffs ever predicated Defendant’s liability on claims of breaches or failure of LPV structures or that their claims relate to a federal flood control project. Plaintiffs’ position has been consistent: It is the MR-GO, not the LPV structures, that destroyed their homes and business.

The Court has consistently recognized Plaintiffs’ position.

In the Section 702 summary judgment battle, Plaintiffs’ winning argument on 702c was that they seek to hold the Army Corps accountable because of defects in the MR-GO that caused the demise of the LPV structures—the Coast Guard cutter analogy. Plaintiffs made explicit time and time again that “Plaintiffs are not predicating Defendant’s liability on levee breaches or the failure, overtopping,or defective design, construction, operation or maintenance of other forms of flood protection works.”  (see also In re Katrina Canal Breaches)

Dr. Bea’s 702c report was prepared to support Plaintiffs’ two alternative arguments (neither of which was successful).  His essential conclusion was that the LPV flood works (particularly along Reach 2) were not true “levees” entitled to Section 702 immunity because they were not built consistent with the SPH criteria prescribed in the law authorizing the LPV. Dr. Bea did not opine that the catastrophic flooding was caused by defects in the LPV structures—and that is not his opinion in his reports on liability that will be the subject of his trial testimony.

Plaintiff continue by documenting the Defendant’s consistent record claiming the federal levees were not a cause of the catatropic flooding.

The doctrine of judicial estoppel has long been recognized as a preventative measure to preclude a party from changing a position that it previously asserted. “Under general principles of judicial estoppel, a party cannot advance one argument and then, for convenience orgamesmanship after that argument has served its purpose, advance a different and inconsistent  argument.”

The Fifth Circuit recognizes the doctrine of judicial estoppel “because of its laudable policy goals. The doctrine prevents internal inconsistency, precludes litigants from ‘playing fast and loose’ with the courts, and prohibits parties from deliberately changing positions based upon the exigencies of the moment.”

One certainty is there will be more on this issue – even more certain is any litigant attempting to play “fast and loose” with Judge Duvan’s court will quickly find out its not a playground.

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