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.

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)”

SLABBED Daily – May 4 (MRGO)

Before this week is over, I will have  worked and blogged my way from one end of the State to the other and seen my youngest child graduate from college.  However, this very late edition of Slabbed Daily is the result of my need to pull my thoughts together, not my clothes for the week – thoughts about the Katrina Canal Breaches Consolidated Litigation and the case currently in trial known as MRGO, Robinson v Corps of Engineers.

It was subsequently determined by the en banc court of the Eastern District of Louisiana that in order to avoid conflicting decisions among the various sections of the Court, the proper approach would be to consolidate all such filings for purposes of pretrial discovery and motion practice. As such, what is now captioned “In re: Katrina Canal Breaches Consolidated Litigation,” C.A. No. 05-4182, has become the umbrella for all cases which concern damages caused by flooding as a result of breaches or overtopping in the areas of the 17th Street Canal, the London Avenue Canal, the Industrial Canal, and the Mississippi Gulf River Outlet (“MRGO”).

case-fileAll totaled, 4909 cases were consolidated as a result of the September 19, 2005, well reasoned decision to avoid conflicting decisions.  With an attorney for the plantiff and another representing the defendant, these 4909 cases required a minimum of 9,818 attorneys; yet, even six months later, February 16, 2006, Martindale.com reportedly listed only 5,352 licensed attorneys practicing in New Orleans. Continue reading “SLABBED Daily – May 4 (MRGO)”

MRGO – USA signed waiver of rights to seek disqualification of counsel

Much to my amazement, the USA actually included a copy of the fully executed Joint Defense and Cost Share Agreement with the Motion filed by USA attorney Robin Smith in apparent violation of the Agreement  – go figure!

SLABBED reported the USA motion here and the Plaintiff’s response in opposition here .

One of us would read the Agreement aloud if wordpress offered that feature.  Instead,below you will find selected, relevant sections from and a link to the fully executed Agreement (h/t Defendant USA) and some of Judge Duval’s “make-my-day” comments from the official transcript (h/t Robinson Plaintiffs).

Joint Defense and Cost Share Agreement

This Joint Defense and Cost Share Agreement (“Agreement”) is entered into by and among the United States of America (United States), Board of Commissioners of the Orleans Parish Levee District, Sewerage and Water Board of New Orleans, Board of Commissioners of the East Jefferson Levee District, State of Louisiana (Department of Transportation and Development), The Parish of Jefferson, and Board of Commissioners for the. Port of New Orleans acting through and upon the advice of their respective counsel…

The Agreement applies to Re Katrina Canal Breeches Consolidated Litigation (Levee), which is pending, in the United States District Court for the Eastern District of Louisiana as Civil Action No. 05-4182 (the “Federal Litigation”), and various actions pending in the courts of the State of Louisiana seeking similar relief (the “State Litigation”) (collectively referred to as “the Litigation”).

Recognizing the need to balance the benefits of consolidating the litigation with the potential for conflicting interests, provisions were added that required all parties to waiver rights to seek disqualification, including, but not limited to Sections 11, 13, and 20.

Continue reading “MRGO – USA signed waiver of rights to seek disqualification of counsel”

USA’s Phantom conflict evokes spirited response from MRGO Plaintiffs

Uncle Sam embarrassed. MRGO Plaintiffs retain outside ethics counsel.
Uncle Sam embarrassed? MRGO Plaintiffs retain outside ethics counsel.

Without warning, at approximately 5:15 p.m. Tuesday, April 28, 2009, and during the Government’s cross examination of a witness that Mr. Andry had just finished examining on direct, Mr. Andry and the Court were advised by Robin Smith of the filing of a Motion to Disqualify Mr. Andry and Ms. Sherman from this matter.

Robin Smith represented to the Court that the USA had not yet “ascertained” the facts, but was filing a motion in the event of a “potential” conflict of interest…Mr. Smith, as an officer of this Court, specifically declared,”We became aware of this conflict or potential conflict late last week and we sought guidance from our professional advisory office. We just received their report today advising us to go ahead and file this. It’s an issue for the Court to look into. It’s not something for us to determine. We can’t do it. We don’t know the facts. Opposition to USA’s Motion to Show Cause Why Plaintiffs’ Attorneys…Should not be Disqualified(emphasis in document)

Yesterday must have been Mr. Smith’s day to specifically declare.  According to the attached Affidavit of attorney Elwood C. Stevens, Jr., his brief conversation with USA attorney Smith ended with Smith specifically declaring:

…he was tired of plaintiffs’ counsel offering him ethics advice and he declined to withdraw the motion.

Likely, Plaintiffs’ counsel was tired of the need to offer ethics advice to an attorney representing our government.  Uncle Sam was probably embarrassed the Plaintiffs had to retain an outside  Ethics expert but they did and the affidavit of attorney Basile Uddo is included, too, as are Continue reading “USA’s Phantom conflict evokes spirited response from MRGO Plaintiffs”

MRGO Update – April 29

Speaking of pellucid. The MRGO trial is starting to remind me of driving my kids to summer camp – He touched me… Did not… Yes, you did – you put your foot on my side… Did not – if I’d touched you, it would have felt like this… Waaaaaaa – he hit me.

Yesterday’s report introduced the Plaintiff’s motion to compel discovery of the calculations used by the USA’s witness Bruce Ebersol.

During the day, the USA filed it’s Did so…You did not…formally known as a Notice of Document Production

The United States provided those calculations to the Plaintiffs by electronic mail on April 27, 2009. Those materials are now being produced with Bates-stamped numbers…(emphasis added)

In that context a motion to strike seems literal and today Plaintiffs filed a… stop!…look what he’s done now…Motion to Strike Lay Witness Pete Luisa from Defendant’s Witness List

…In MRGO, the parties were obligated to update their witness list on the 20th day of each month “to facilitate regular and ongoing preparation for common liability issues trials.”  As such, the defendant United States has had over twenty-five (25) opportunities since the March 1, 2007…to identify Mr. Luisa prior to the filing of its final witness list…The first time the defendant identified Mr. Luisa was on the March 27, 2009 United States’s Final Witness List of Witnesses…

The subject matter for which Mr. Luisa was identified to address was “how the Corps determines its annual funding recommendations for projects such as the LPVHPP”…without any opportunity to depose the witness, Plaintiffs are suspect of the relevance of Mr. Luisa’s testimony to the matters at issue in this trial… Continue reading “MRGO Update – April 29”

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. Continue reading “SLABBED Daily – April 24 (a MRGO update)”

MRGO update

Just as I was about to add “no news from the Court” to the April 23rd SLABBED Daily, I noticed a MRGO story in the Times Picayune, Newsman Norman Robinson describes his own trauma.

After Katrina left his spacious home in eastern New Orleans a stinking shambles, TV news anchor Norman Robinson and his wife lived for two years in a 700-square-foot River Ridge apartment where, he testified in federal court Wednesday, he got drunk every night to cope with post-hurricane trauma.

“I ended up going to a psychologist because I wanted to commit suicide, and I ended up in a drunken stupor most of the time, ” Robinson said.

His testimony came during the third day of a trial in which he and four others hope to prove their case that the Army Corps of Engineers’ failure to maintain the Mississippi River-Gulf Outlet created a speedway for Katrina storm surge that destroyed their property…

Sadly, there are countless numbers of Katrina survivors still trying to cope with the trauma as best they can with hurricane season 2009 now weeks away and, shortly thereafter, the fourth anniversary of the storm.

In yesterday’s second issues and Order post, I mentioned the difficulty of obtaining Dr. Risio’s report.  Since then I’ve found a report on the web – undated as was the one Judge Duval mentioned.  I’m posting it with reservation and no claim it is relevant to the case only because I think the more we know about wave modeling the better.