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JUDGE: CORPS LIABLE FOR HURRICANE KATRINA FLOODING

JUDGE: CORPS LIABLE FOR HURRICANE KATRINA FLOODING

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Published by KatrinaDocs
The ruling from Judge Duval has arrived. THE LAW OFFICE OF JOSEPH M. BRUNO is a preeminent plaintiffs' trial law firm specializing in the representation of people in federal court who are seriously injured in an accident or by a business relationship. THE LAW OFFICE OF JOSEPH M. BRUNO maximizes recovery for people who have been hurt by defective products, unsafe cars, tires and drugs, dangerous workplaces and business fraud. Our experience covers the full range of personal injury and business torts, litigation matters, including class action lawsuits. For more information about THE LAW OFFICE OF JOSEPH M. BRUNO, practice areas and verdicts and settlements, we invite you to explore our web site. Should you like to discuss a legal matter with us, you may submit a question by clicking here the tab above or contact us directly.
The ruling from Judge Duval has arrived. THE LAW OFFICE OF JOSEPH M. BRUNO is a preeminent plaintiffs' trial law firm specializing in the representation of people in federal court who are seriously injured in an accident or by a business relationship. THE LAW OFFICE OF JOSEPH M. BRUNO maximizes recovery for people who have been hurt by defective products, unsafe cars, tires and drugs, dangerous workplaces and business fraud. Our experience covers the full range of personal injury and business torts, litigation matters, including class action lawsuits. For more information about THE LAW OFFICE OF JOSEPH M. BRUNO, practice areas and verdicts and settlements, we invite you to explore our web site. Should you like to discuss a legal matter with us, you may submit a question by clicking here the tab above or contact us directly.

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Published by: KatrinaDocs on Nov 19, 2009
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09/20/2010

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1
Norman Robinson, Kent Lattimore, Lattimore & Associates, Tanya Smith, Anthony Franz, Jr. and LucilleFranz are the named plaintiffs. See Graphic No. 11 for a pictorial representation of the location.
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANAIN RE KATRINA CANAL BREACHESCIVIL ACTIONCONSOLIDATED LITIGATIONNO. 05-4182SECTION "K"(2)PERTAINS TO:
 Robinson
C.A. No. 06-2268FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Court conducted a 19-day bench trial of this tort suit brought by six plaintiffs
1
seeking compensation from the United States based on their contention that as the result of certain defalcations of the U.S. Army Corps of Engineers (“Corps” or “Army Corps”) withrespect to the maintenance and operation of the Mississippi River Gulf Outlet ("MRGO"), theUnited States is liable to them under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671,
et seq.
for damages incurred in the aftermath of Hurricane Katrina. The Court exercised jurisdiction over the parties, and pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1346(b) and 28U.S.C. § 2671 (FTCA) has jurisdiction over this suit by plaintiffs against the United States forthe damages alleged. After considering all testimony and evidence presented at trial and thedeposition testimony that the Court reviewed prior to the trial, the Court is prepared to rule asfollows. To the extent a finding of fact constitutes a conclusion of law, the Court adopts it assuch. To the extent a conclusion of law constitutes a finding of fact, the Court adopts it as such.
Case 2:05-cv-04182-SRD-JCW Document 19415 Filed 11/18/2009 Page 1 of 156
 
2Prior to this trial over the course of two years, the Court decided a number of motions bywhich the United States sought the dismissal of this suit prior to trial. In
 In re Katrina Canal Breaches Consol. Litig.(Robinson)
, 471 F. Supp. 2d 684 (E.D.La. 2007) (
Katrina I)
, the Courtdenied a Rule 12(b)(1) motion in which the Government contended, among other arguments
 ,
thatthe Court lacked jurisdiction over the subject matter of the case based on the Flood Control Actof 1928 (“FCA”), specifically, 33 U.S.C. § 702c, which provides that “[n]o liability of any kindshall attach to or rest upon the United States for any damage from or by floods or flood waters inany place.” 33 U.S.C. § 702c. This Court denied the motion and in particular refused to applythe United States’ overly broad interpretation of that statute and the seminal case of 
CentralGreen Co. v. United States,
531 U.S. 425 (2001). Relying on
Graci v. United States,
456 F.2d20 (5th Cir. 1971), this Court found that the Corps could be held liable for damages arising outof activities surrounding a navigational channel notwithstanding the fact that those actionscaused the failure of certain levees. The Court wrote:. . .[T]he Government’s position ignores the fact that even the Supreme Court in
Central Green
opened the possibility of a segregation of damages–those forwhich the Government would be immune under § 702c and those for whichimmunity would not attach. Indeed, the Government even concurred with thisreading at oral argument. (See Transcript of Hearing, October 27, 2006, at 33).For example, would the United States be immune for all damages if a Navy vessellost control and broke through a levee where the sole cause of the failure of thatlevee was the Navy vessel’s negligence? Thus contrary to the Government’scontention that
Central Green
broadens the immunity provided by § 702c, inrealty
Central Green
requires the Court to identify
the cause of the damage
ratherthan base a decision on the mere fact that a flood control project was involved.
Central Green
does not answer the question of what nexus to a flood controlproject is required for floodwaters to trigger immunity.
Case 2:05-cv-04182-SRD-JCW Document 19415 Filed 11/18/2009 Page 2 of 156
 
2
Two other opinions that be will be referred to as follows:
 In re Katrina Canal Breaches Consol. Litig.(Robinson)
, 577 F. Supp. 2d 802 (E.D.La. 2008) (
Katrina II)
;
 In re Katrina Canal Breaches Consol. Litig.(Robinson),
627 F. Supp. 2d 656 (E.D. La. 2009) (
Katrina III).
3
The Corps is governed by a hierarchical chain of command in which the Chief of Engineers is the seniorofficer at Headquarters in Washington, D.C. referred to as the Office of Chief Engineer (“OCE”) with the ultimatedecision-making authority. Civil works are generally assigned to field officers under the staff supervision of Headquarters. The relevant District in this instance is the New Orleans District (“NOD”) which was responsiblefor, both the MRGO and the Lake Pontchartain and Vicinity Hurricane Protection Plan (“LPV”). The DistrictEngineer is the senior official at NOD and responsible for oversight of Corps programs ongoing in the NOD. TheNOD reports to, and is overseen by the Lower Mississippi Valley Division (“LMVD”) whose senior official is theCommander who reports to Headquarters.
3
 Id.
at 695. Thus, the Court undertook this trial to determine,
inter alia
, whether the Corps’activities with respect to the MRGO acted like that Navy vessel destroying the levee.
2
I.FINDINGS OF FACTA.FACTUAL BACKGROUND1.Construction of MRGO
In 1943, Congress requested a report from the Chief of Engineers, Secretary of theArmy,
3
on the viability of the Mississippi River-Gulf Outlet which report was authorized by theRiver and Harbor Act and was approved on March 2, 1945. DX-0573 (H.R. Doc. No. 82-245(1951)) at 1. The genesis of this request was apparently two-fold. The activity experienced atthe Port of New Orleans during World War II made clear that an expansion and dispersion of those facilities was necessary in case of future hostilities.
 Id.
at 41, ¶¶ 75-76. In addition, ashorter route to New Orleans would provide savings to the maritime industry by decreasing thedistance from the Gulf of Mexico to New Orleans by about sixty miles.
 Id.
at 35-36, ¶¶ 56-57.Indeed, the needs of the maritime industry were a substantial focus for the Corps’activities as concerned the MRGO. At the same time, however, the safety of the citizenry of themetropolitan New Orleans area was another of its charges as demonstrated by Congress’
Case 2:05-cv-04182-SRD-JCW Document 19415 Filed 11/18/2009 Page 3 of 156

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