USA Today caught off-balance by MRGO decision

Not only is Rick Jervis hoping that the readers will swallow his own seed of the Corps Costs Estimates of 100’s of Billions for their side of the work, he is offering the erroneous proposition that the Corps is the Lead in the solution to the Wetlands Restoration activity –this prophylactic misnomer stretches so very far from the Truth as to resemble a condom over the head of an oil derrick.

Editilla offers a whole new meaning to “hung” on the Ladder with his scatching review of USA Today’s take on the MR-GO decision.  True enough, only a Richard-head would think either/or:

The ruling could lead to billions of dollars in other legal action from storm victims, but it also leaves regional leaders with a dilemma: Continue reading “USA Today caught off-balance by MRGO decision”

MR-GO: Judge Duval finds Corps’ mismanagement flooded lower 9th in New Orleans following Katrina

With the world watching what the spinmasters of the insurance industry called the great New Orleans Flood,  the preventable disaster delivered  a horror beyond words.

“Judge Duval exposed 40 years of the Army Corps of Engineers’ gross malfeasance with regard to the operation and maintenance of the MR-GO,” said Pierce O’Donnell, a Los Angeles-based attorney and co-leader of the plaintiff’s legal team. “His decision is an extreme condemnation of the lack of concern for the safety of New Orleans and St. Bernard residents.”

"Duval said he was 'utterly convinced' that the corps' failure to shore up the channel doomed the channel to grow to two to three times its design width" (CainBurdeau)

Duval’s decision is also a fascinating read – all 189 pages of his Findings of Fact and the two-page Judgment.

Continuing with Mark Schleifstein, writing for the Times Picayune, the decision…sets the  stage for judgments against the govenment for damages by as many as 100,000 other residents, businesses and local governments in those areas who filed claims with the corps after  Katrina. Continue reading “MR-GO: Judge Duval finds Corps’ mismanagement flooded lower 9th in New Orleans following Katrina”

Proof positive that when I take some time away from Slabbed I don’t read the news much

There was a major settlement in the Mr GO case last week we flat out missed but thanks to a couple of loyal readers we’re getting brought back to speed very quickly. I’m certain Editilla had the Times Picayune story hung on the Ladder so he gets a hat tip too. First off an excerpt from a reader email:

In a nutshell, this fund will pay only the attorney’s costs and expenses. There are 500,000 class members, and $20 million in settlement funds. That’s $40/class member before expenses and fees. The attorneys are not taking “fee”, but are getting an “enhancement” on their costs and expenses (i.e. making a profit on their clients).

Then some sage analysis:

It will be too costly to allocate and distribute the funds that will be left over after expenses. Each class member has the right to come before the court and object to their allocation. That’s a half-million potential objectors. Read closely the court’s statements on cy pres awards. I would be willing to bet the court gives the money to levee research or something similar.

Not knowing what the heck a Cy pres award was I did a bit of checking and found both the definition and the racket.

The term cy pres refers to a court-ordered award to a charitable organization of the excess, unallocated, unclaimed or undeliverable funds in a class-action judgment or settlement, or actions in which funds set aside for reimbursement cannot be distributed due to manageability concerns.

The bottom line for the class members who lost their homes due to design flaws in the New Orleans levee system is there is a good chance they will receive nothing for their losses Continue reading “Proof positive that when I take some time away from Slabbed I don’t read the news much”

SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!

A federal judge in Washington ruled Monday that plaintiffs can go forward with a lawsuit charging the federal government with “taking” the value of their land in St. Bernard and the Lower 9th Ward through flooding caused by the building the Mississippi River-Gulf Outlet.

Court of Federal Claims Judge Susan Braden, appointed by President George W. Bush, refused to dismiss the lawsuit, which federal attorneys contended was filed too long after the six-year statute of limitations in such cases should have run its course.

Mark Schleifstein had the story – Mississippi River-Gulf Outlet lawsuit can go on, judge says – for the Times-Picayune.  Glancing at reader comments on this and related stories shows some take exception to Judge Braden’s Republican connections.  However, her resume indicates no one should sell Susan Braden short:

In July 2009, Judge Braden was appointed as a Member of the Standing Committee on Ethics and Professional Responsibility-Judges Advisory Committee to the American Bar Association…  On February 14, 2007, Judge Braden was elected as a Member of the American Law Institute and is working on the Institute’s Restatement and Unjust Enrichment Project. From 2005-2008, Judge Braden was a Member of the Editorial Board of the American Intellectual Property Law Association.

Prior to joining the bench, Judge Braden litigated complex civil cases in private practice before both trial and appellate courts.

Courting Influence reports that from 1990-1992, Judge Braden was a partner in Anderson, Kill, Olick & Oshinsky.  Oshinsky, who has since left the firm, recently formed Gilbert Oshinsky and became a partner to August Matteis and Craig Litherland – the Rigsby qui tam lawyers!  Small world!

It will be interesting to see how far the cases goes with Braden’s “green ligh”. Continue reading “SLABBED welcomes Judge Susan Braden – Katrina’s Lady Justice gives MR-GO the go!”

Slabbed welcomes Wayne Weiser: “Why Katrina was the fault of man’s malfeasence”

Mr Weiser is retired after thirty nine years with US Army Corp of Engineers in the New Orleans district. He has compiled a boatload of research and given his experience with USACE his perspective is interesting in light of the ongoing NOLA area flood control rebuilding and MRGO litigation.

I’ll also add that while we have been highly critical of FEMA at times we also greatly valued the input we received from rank and file FEMA employees as we welcome all viewpoints here at Slabbed. While we are primarily insurance and legally oriented we have a big enough tent to include NOLA flood control as a topic.  If you are with the USACE and are moved to comment we’d love to hear from you. – sop

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brief? Not if it’s 125 pages – a MRGO post-trial update

Post Trial Briefs–no Findings of Fact or Conclusions of Law are required to be filed and are optional. Briefs cannot exceed 125 pages…

  • Plaintiffs’ Post-Trial Memorandum shall be filed by June 18, 2009.
  • Defendants’ Post Trial Memorandum shall be filed by July 20, 2009.
  • Plaintiffs’ Reply Memorandum shall be filed by August 3, 2009.

With the issues Judge Duval wants briefed, 125 pages may be a bit of a squeeze, as these examples from the three-page list in his Order detailing the post-trial briefing schedule suggest:

  • Explain why some levees failed and others did not and how that supports the Plaintiffs’ theory of front side erosion and lateral subsidence.

SLABBED Daily – May 16-17 (weekend edition)

An earlier version of the weekend SLABBED Daily was an invitation to brunch; but, it went back in the oven.  Not to worry, here’s something to chew on – Corps picks 11 for levee work

The Army Corps of Engineers has awarded contracts to 11 companies — most of them local and all but two in Louisiana — that could share up to $500 million in levee construction work.

Each company is expected to be awarded between $10 million and $50 million of work under a program that allows the corps to prequalify contractors it can later tap when work becomes available. The companies are all designated as small or disadvantaged…

The contracts will be for heavy construction work for levees; floodwalls; pump station construction or enlargement; road, culvert and canal construction or repair; concrete bridge work; earthen channel enlargement and concrete lining; concrete or stone armoring; and installing foreshore protection in water bodies in front of levees…

The issue of contractor liability is what made this story a brunch-buster – and what links it to MRGO and the Responders re: Katrina Consolidated Levee Breach Litigation.

Early last week (May 11) the MRGO Plaintiffs filed notice of Appeal of the Court’s decision regarding WGI, a contractor who worked on the levees prior to Katrina. Continue reading “SLABBED Daily – May 16-17 (weekend edition)”

Drove my Chevy to the Katrina Canal Breaches Consolidated Litigation (part 1)

Today is the day we start  the mind-boggling task of looking at the Katrina Canal Breaches Consolidated Litigation.  Inclusive of Robinson v US Army Corps of Engineers,  MRGO, we begin with an examination of the impressive infrastructure of the case established in Case Management Order Number 1: Protocol for Case Management.

In re Katrina Canal Breaches Consolidated Litigation, CA No. 05-4182, as designated by Case Management Order No.1 issued on July 19, 2006, is the umbrella caption under which all litigation arising out of Hurricane Katrina is to be filed. For case management purposes, CA No. 05-4182 has been divided into several sub-categories, wherein each suit within the scope of this consolidated litigation is placed based on the nature of the claims being brought.

After struggling to compose a brief narrative description of the case infrastructure, I determined even an imperfect, unofficial picture would be more understandable and created this graphic depiction of the case management. Continue reading “Drove my Chevy to the Katrina Canal Breaches Consolidated Litigation (part 1)”

Going, going, MR-Go is gone (for now)

Testimony in the federal trial over whether the Mississippi River-Gulf Outlet contributed to catastrophic flooding during Hurricane Katrina in St. Bernard Parish, the Lower 9th Ward and parts of eastern New Orleans ended Thursday where it began weeks earlier: with an argument over how big a role the channel played in the breaching of levees protecting those areas…

Both sides still must file additional briefs and other responses, a process that is not expected to wrap up until early August.

Mark Schleifstein, writing MR-GO flooding suit in judge’s hands for the Times-Picayune, reports, Duval said attorneys for both sides had done a public service “because, frankly, this is a matter that needed to be heard, however it comes out.” h/t Editilla

However it comes out was the subject of a Status Conference Judge Duval convened ten days ago. Continue reading “Going, going, MR-Go is gone (for now)”

SLABBED Daily – May 11 (O’Keefe, Rigsby qui tam, MRGO)

The more “off” than “on” internet access from Oxford accounts for the absence of SLABBED Daily over the weekend – and the almost constant rain for my late departure from Greenwood where I’m writing today before heading home.

Sop picked up the smoking O’Keefe response. It’s even hotter when read with the O’keefe’s amended complaint and illuminating deposition of Robert Tripple, State Farm senior vice-president for this region.

How much hotter? Well, hot enough that State Farm’s opposition to the O’Keefe’s amended complaint addresses little else but the eternally claimed “improperly dominated [sic] State Farm Mutual”.

All that heat sheds light on the Rigsbys’ qui tam complaint.  Now do you see it? Speaking of light, I read an interesting case summary that made me think of State Farm’s recent motions to exclude testimony of all of the Rigsbys’ expert witnesses – State Farm’s Appeal of the decision in a Texas case,  Rodriquez v State Farm.

See if you don’t agree that this State Farm claim about Dr. Sinno is similar to the claim State Farm made about the expert in the Rodriquez case:

State Farm Motion to exclude testimony of MSU professor Ralph Sinno:

He [Dr. Sinno] repeatedly admits that his opinion is based on “guesswork”and “speculation”.

State Farm Appeal of Rodriquez v State Farm:

State Farm argues that Dabney’s testimony is so unreliable that even Dabney himself refers to his opinions as a “wild ass guess”.

Here’s how the Court ruled on the point in the Appeal: Continue reading “SLABBED Daily – May 11 (O’Keefe, Rigsby qui tam, MRGO)”