MRGO lawsuit victory

Could not find on the LOCAL news website, NOLA.com. Imagine that.

found at Bloomberg dot com

Hurricane Katrina Victims Win $719,698 From U.S. in First Trial
A A A By Margaret Cronin Fisk and Leslie T. Snadowsky

Nov. 19 (Bloomberg) -- Hurricane Katrina victims were awarded $719,698 in damages by a judge in a lawsuit claiming a canal dredged by the U.S. Army Corps of Engineers from New Orleans to the Gulf of Mexico destroyed a natural barrier to a storm surge.

U.S. District Judge Stanwood R. Duval Jr., who heard the trial in New Orleans without a jury, yesterday found in favor of four residents and one business, while rejecting the claims of the owners of another property. The decision will support the claims of about 100,000 residents and business owners in the area, plaintiffs’ lawyers said.

Residents sued the U.S. and the Army engineers, claiming negligence in designing, constructing and maintaining the Mississippi River Gulf Outlet, the canal known as Mr. Go.

Duval said the Army engineers are liable for the “negligent operation and maintenance” of the canal and not for faulty design or construction. Duval said in April at the beginning of the trial, the first over the Mr. Go lawsuits, that his finding would be used as a guide for other claims.

“Once the corps exercised its discretion to create a navigational channel, it was obligated to make sure that channel did not destroy the environment surrounding it thereby creating a hazard to life and property,” Duval said yesterday in his 156-page opinion. “When the corps designed the MRGO, it recognized that foreshore protection was going to be needed, yet the corps did nothing to monitor the problem in a meaningful way.”

Flooding after the 2005 hurricane drowned much of New Orleans’ Lower Ninth Ward and nearby St. Bernard Parish.

‘Engineering Blunders’

“By 1988 it knew that indeed all of the engineering blunders that it had made now put the Parish of St. Bernard at risk,” Duval wrote.

The residents said the canal made New Orleans and the surrounding area more vulnerable to hurricane-induced flooding. They claimed the corps was warned repeatedly that the Mr. Go operation had removed natural buffers to floods, killing trees and infusing the marshland with saltwater.

The lawsuit, filed in 2005, was the first to go to trial on claims against the corps. The plaintiffs were seeking unspecified damages at the trial.

“The people of this community have finally been vindicated and now they’re going to be compensated,” Joe Bruno, a plaintiffs’ attorney, said yesterday in a phone interview.

‘Monumental Negligence’

“This is a landmark victory,” said attorney Pierce O’Donnell, who also represented the New Orleans residents. “It’s the first time ever the Army Corps of Engineers has been held responsible for its monumental negligence.”

The finding of negligence in the maintenance and operation of the canal supports the claims of about 100,000 residents and business owners in the Lower Ninth Ward and St. Bernard Parish, Bruno said.

Duval’s finding that the corps isn’t liable for negligent design of the canal will affect claims from about 80,000 property owners in east New Orleans, Bruno said.

Plaintiffs’ lawyers will be seeking a global settlement with the U.S. to cover those residents too, Bruno said.

Dean Boyd, a spokesman for the U.S. Department of Justice, didn’t immediately return a call seeking comment yesterday.

The U.S. said in court filings that it isn’t responsible for the flood damage caused by Katrina.

“This catastrophe would have occurred regardless of the Mr. GO and regardless of the way the channel was maintained prior to the flood,” the U.S. said in an April pretrial brief.

The corps said the levees were inadequate to withstand the force of Hurricane Katrina.

Witnesses for the plaintiffs said the Army knew or should have known that the canal would increase risk of flooding.

Corps Warned

“They knew in the mid 1970s, and they certainly knew it by 1981,” Sherwood M. Gagliano, a geologist and former consultant to the corps, testified. He said he submitted multiple reports to the corps warning about potential adverse effects.

The government didn’t undertake any of the remedial efforts he recommended, he testified. This led to “one of the greatest catastrophes in the history of the United States,” he said.

The U.S. wasn’t negligent and didn’t block remediation of problems, Gregory Breerwood, formerly the highest-ranking civilian with the New Orleans division of the corps at the time of Katrina, testified.

If anyone “suspected or determined that a project would have been detrimental to the public, we would have taken steps to either go to the proper authorities or to the proper offices to assure that that particular deficiency was dealt with and remedied,” he said.

Contemplated Suicide

One of the plaintiffs, Norman Robinson, a news anchor at the NBC affiliate in New Orleans, told the court he contemplated suicide when his home was destroyed.

Robinson said he “felt like an idiot” after hearing the testimony of multiple plaintiffs’ experts who said the corps knew about the probabilities of flooding because of the Mr. Go project.

“I should have known what they knew,” he said. “I never would have placed my family in jeopardy.”

Robinson and his wife weren’t awarded any damages in Duval’s ruling.

“The corps is only exposed to liability for negligent operation and maintenance of the MRGO and is not liable for any negligence relating to the original design and construction of the channel,” Duval said.

The decision eliminated the Robinsons’ claim because it relied on allegations of design flaws, he said. He found that the Army didn’t have a duty to construct a surge-protection barrier.

Funnel Effect

Duval said the corps was aware the MRGO could produce a funnel effect, which ultimately increased the height of Katrina’s storm surge and the magnitude of destruction. The canal acted as a funnel bringing water into the city and strengthening its force, Duval said.

The corps considered a remedial action to prevent this funnel effect in 1967, he said. “The plan was eventually rejected as not economically justified, detrimental to the economic interests of the local participants, and was so broad that it would require Congressional review,” he wrote.

The case is Robinson v. U.S., 06-cv-02268, and the cases are combined in In re Katrina Canal Breaches Consolidated Litigation, 05-cv-04182, U.S. District Court, Eastern District of Louisiana (New Orleans).

To contact the reporters on this story: Margaret Cronin Fisk in Southfield, Michigan, at mcfisk@bloomberg.net; Leslie T. Snadowsky in New Orleanst .

Last Updated: November 19, 2009 00:01 EST