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 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, reportedly listed only 5,352 licensed attorneys practicing in New Orleans. Continue reading “SLABBED Daily – May 4 (MRGO)”

SLABBED Daily – April 30 (update:Rigsby qui tam, MRGO)

I could offer the reason this second evening edition of the SLABBED Daily is that I was waiting on Judge Senter’s bit of housekeeping news:

TEXT ONLY ORDER finding as moot Defendant Exponent, Inc.’s  Motion to Dismiss; finding as moot Defendant Jade Engineering’s  Motion to Dismiss for Lack of Jurisdiction; and finding as moot Defendant Jade Engineering’s Motion to Dismiss. These motions are rendered moot in light of the Court’s  order dismissing these two defendants, among others. NO FURTHER WRITTEN ORDER SHALL ISSUE.

The truth, I’m sorry to say, is that I just got so caught up in MRGO that I forgot!  I don’t expect the qui tam lawyers to forget about the two events noticed yesterday – their upcoming deposition of Lecky King on May 5 and Jack Ford’s the following day.

However, according to the Notice of Supplemental Production also on the Docket yesterday, State Farm had a little trouble remembering important things, too.

State Farm has so far been unable to confirm to its satisfaction whether exhibit 7 to the April 30 and May 1, 2007 Cori and Kerri Rigsby deposition transcripts in McIntosh is still subject to restrictions. For that reason, out of abundance of caution, Exhibit 7 to those depositions is not being produced at this time.

Otherwise, the included a list of 16 items produced and delivered to the attorneys for the Rigsby sisters and this snark:

Nothing in this submission constitutes consent by State Farm to the Rigsbys Continue reading “SLABBED Daily – April 30 (update:Rigsby qui tam, 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”

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.

MRGO April 21: the issue and the Order (part 2) – Resio v Van Heerden

Igor van Heerden’s involvement  in the MRGO litigation was never in doubt.  However, what role he played wasn’t evident until yesterday when Judge Duval issued an Order and Reasons ruling on on the Plaintiffs’ Motion to Strike Supplemental Report of Defendant United States’ Expert Donald Resio and Preclude Derivative Testimony and the related Opposition filed by the USA.

Judge Duval summarized the issues in his Order and Reasons:

Before the Court is a Motion to Strike Supplemental Report of Defendant United States’ Expert Donald Resio and Preclude Derivative Testimony filed by Plaintiffs in the Robinson matter.

In essence, Plaintiffs contend that this “Supplemental Report on Waves and Overtopping Characteristics Along the MRGO” issued by Donald Resio was received by Plaintiffs on March 24, 2009, “long after” his February 9, 2009 deposition was taken. They maintain that they will be unduly prejudiced in the event he is allowed to testify to these findings:

(1) because the materials relied upon should have been produced more than a monthprior to his deposition under Fed. R. Civ. P. 26, and the United States unduly delayed in its production of these materials, Plaintiffs arguing that the “the defendant fought production of these materials consistently. . . until Dr. Resio was educated at his deposition of the flaws in his analysis and a new approach was created” (Doc. 18514 at 8); and

Plaintiffs filed a detailed affidavit of Dr. Ivor Van Heerden in which he opines that it Continue reading “MRGO April 21: the issue and the Order (part 2) – Resio v Van Heerden”

MRGO April 21 – the issue and the order (part 1): Duval got ’em told

If Federal Judge Stanwood Duval had a fan club, with your membership card, you’d get a pocket dictionary and OMG would you ever need one!

Yesterday was not a good day for the government’s attorneys.  Judge Duval just flat got ’em told; and, while plaintiffs’ counsel got off light, they did not escape his pen without a scratch.

No one this far south has ever used the word pellucid to tell somebody off; but, Judge Duval did in the Order and Reasons he issued yesterday – and, given the significance of  a pellucid telling-off, part one of this two-part post looks at the order of the reasons Duval got ’em told.

There is no question that this Court was forced to continue this trial for a second time based on the Government’s need to prepare its defense, making it practically four years since Hurricane Katrina struck this city to adjudicate this issue.

Furthermore, it unquestionably ordered on October 9, 2008 that Defendant’s Expert Reports and computer generated evidence were to be produced on December 22, 2008… The Court further ordered at that time that the depositions of all Plaintiffs’ and Defendant’s Experts were to be completed by February 6, 2009.

From these facts, what is also pellucidly clear is that neither side complied with the deadlines set forth to complete this discovery. Continue reading “MRGO April 21 – the issue and the order (part 1): Duval got ’em told”

SLABBED Daily – April 20 UPDATED

going, going, gone – MRGO has gone to trial

Starting in federal court today, a group of New Orleans and St. Bernard Parish residents will square off against the Army Corps of Engineers in a trial they hope will prove that failure to properly build and maintain the Mississippi River-Gulf Outlet eroded protective wetlands and led to massive flooding that destroyed their homes and businesses during Hurricane Katrina.

The corps will try to convince Judge Stanwood Duval that even with the best possible maintenance of the MR-GO, only better and higher hurricane protection levees could have held back the storm surge.

The trial, expected to last three to four weeks, will be conducted by Duval without a jury.

MR-GO gets ready to go to trial – Part 1- the government’s seven motions in limine

Breaking News – Judge Duval denies six of seven motions in limine filed in MRGO

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

MR-GO gets ready to go – Part 3 – the Plaintiffs’ case

MR-GO gets ready to go – Part 4 – the Defense

Judge Duval rules – and says so in an Order

The trial is getting under way as work continues to close the MR-GO, Continue reading “SLABBED Daily – April 20 UPDATED”

MR-GO gets ready to go – Part 3 – the Plaintiffs’ case

plantiffs-locationsThe most devastating catastrophe in American history was not an accident. But for the gross negligence of the United States Government-and particularly the Army Corps of Engineers-large portions of Greater New Orleans would not have been flooded.

Like MR-GO itself, what’s below the surface of Robinson v US Army Corps of Engineers is far from simple. The Plaintiffs’ Trial Brief tells the story.

The United States Army Corps of Engineers (Corps) was tasked to design a hurricane protection system to protect among other areas, New Orleans East, the Lower Ninth Ward, and St. Bernard Parish from a maximum hurricane event. This project was termed the Lake Pontchartrain Vicinity Hurricane Protection Plan (LPVHPP).

Plaintiffs contend that the Corps design, construction, operation, and maintenance mrgo-focus-of-caseof the navigation channel, the Mississippi River Gulf Outlet (MRGO) caused or contributed to the failure of the LPVHPP along Reach 2 of the MRGO causing catastrophic flooding of St. Bernard Parish and the Lower Ninth Ward in Orleans Parish, along the southern border of New Orleans East, New Orleans East; and along the east bank of the IHNC at the Lower Ninth Ward and causing flooding of both the Ninth Ward and St. Bernard Parish.

mrgo-authorized-v-actual-3In the supporting Pretrial Proposed Facts and Conclusions of Law, Plaintiffs go 774 items deeper into the Plaintiffs’ claim the Corps is responsible for the MRGO flooding New Orleans and liable for the resulting damage. Continue reading “MR-GO gets ready to go – Part 3 – the Plaintiffs’ case”