Katrina: The Jury Answers

by Don Wittig

  4 The Bureaucracy Blew It

  T OO GOOD TO BE TRUE, the early news only reported three breaches. Melinda knew better. I am guessing fifty breaks, she thought. The levees are breaching and failing, one by one. With all the damn politics that go into funding billions of dollars of construction, everyone had a hand in the till. Still, the Corps was largely in charge. How could they close their eyes and watch well-meaning do-gooders, and a bunch of self-seeking politicos, create such a quilt work of disaster? At least twenty different federal agencies had elbowed their way for a bigger piece of the tax-payer pie. But they were pikers compared to the thirty-five state and local agencies with their hands out and their backs turned to safety. But it’s the feds and the Corps who must accept the ultimate responsibility for the inexpiable engineering failures. Melinda bit her lip, pondering the disaster.

  The Times Picayune reported that Hurricane Katrina struck the New Orleans area early in the morning August 29, 2005. That night, storm-surge flooding overwhelmed the city’s levee system. Eighty percent of the city was submerged. After the levees breached and floodwaters ravaged the city, thousands were trapped, even while hundreds of ready school buses stood idly by. Many residents contacted others via text messages while the cell towers were still functional. The internet was posted with thousands of these messages around the clock for the first two weeks after the storm, providing rescue teams with the locations of stranded people around

  KATRINA: THE JURY ANSWERS the city. It wasn’t long until all forms of communication, including nine-one-one, failed. Some called the storm the greatest disaster in the nation’s history.

  Melinda could not sleep. She got up at 2:00 a.m. and fumbled with the locked compartment of her briefcase, the only thing she brought with her to Lake Charles. She pulled out one of the five memos she had written to the headquarters of the Army Corps of Engineers.

  January 10, 1999

  Personal and Confidential

  Dear General Walker: It grieves me to once again write you regarding my continued concerns about the New Orleans levees. I am especially concerned about the Orleans Canal, near its intersection with Smith. You will recall we deferred to the wishes of Commissioner Landry because of his close ties with Senator Boudreaux. Landry saw to it that his brother-in-law, Jay Chiasson, got the contract to add six feet to the top of the levee for over one mile to make it cat three certified. I will not embarrass anyone with the sordid details of what happened to the construction money. My sole concern is for the structural integrity of that section of the canal. We all know it cannot possibly stand a cat two surge, much less a cat three. Please, we must get Congress to look at this project again and get it fixed. And I mean before it is too late. This time we need a reputable construction firm to do the work.

  Respectfully submitted, /s

  Major Melinda Lewis

  Melinda could not contain her exasperation. She felt her blood pressure rise, like so much heat. Disturbed, she quickly rose from bed.

  John woke to the commotion. She faced her concerned husband. “Sorry I woke you, honey. Look at this. I told them and told them and told them. And the thanks I got was no promotion for the last seven years. That’s eight hundred dollars a month in retirement we were screwed out of. Well, in about seven weeks, no more gag orders. No more bureaucratic bull hockey. No more yes sir, no sir, just the truth. People will pay for kissing up to those politicians all these years. I can’t take it anymore. John, I think I’ll see if I can leave the end of September instead of October. I already told them I was retiring in October. So what would be the big deal of me leaving the end of September?” Melinda appreciated John’s patience, wit, and understanding. Their twenty-plus-year marriage was solid and good for both partners.

  “You know they may not even let you leave in October after the mess you all made in New Orleans.” John tried to smile. He was a serious man, average looks and extremely good hearted. His full head of wavy hair still looked handsome in the middle of the night. The scent of his Old Spice had finally faded by the wee hours of the morning.

  “Don’t even go there. What’s this ‘you’ stuff? You know better. I’ve been doing my part to protect our city for longer than we’ve been married. So hush up. But you are probably right; they won’t let me go early. Might make them suspicious anyway. Just two months to go. I’m calling Deerman tomorrow, if I can get through. We need an action plan.”

  John totally trusted Melinda, but he didn’t like the fact she had to deal with so many other men. Still, it was her job, and he believed in her. Deerman worried him a little because he seemed to have a wandering eye and was brash enough to start something foolish.

  5 The Environmental Connection

  B OB DEERMAN TOLD MELINDA TO sit down and have a Chardonnay. Melinda flared back, “I am so mad I can’t see straight! Disgusted, is the better word! I told ‘em, and told ‘em and told ‘em. Here, look at my January tenth memo. Make that Chardonnay a bourbon on the rocks.

  “Bob, you’ll have to forgive me. I don’t ever remember being so furious in my life. And our house wasn’t even flooded! John is fine, I’m fine, and even our dog Liam is fine. But look at my city! Blocks and blocks are underwater and probably not salvageable. And what did the Corps do? They tried to sell the idea that water went over all those levees. We all know that is not true. What a crock.” Melinda paused to catch her breath. Deerman read the memo to himself. His eyes widened. He checked a little-boy grin that wanted to capture and fill his face. The environmental juices were flowing. He thought to himself, What a monster of a lawsuit this could be!

  “Bob, I told you I am going to leave the Corps at the end of October. Then I want to sue their rear ends. I don’t mean for the way they treated me when I complained. They passed me over for lieutenant colonel. That was too long ago. What I care about is all those people who died and were flooded. Can you imagine ten feet of water in your home? Why did we stand by and let this disaster happen? Give me another bourbon.”

  “Melinda, I hear you. I have never seen you so angry. Take a deep breath. We need to talk.” Bob did not dare sit too close. He watched her from the other side of the coffee table.

  “I have been talking for fifteen years and look what I got. My city and my people flooded! The time for talking is past. It’s time for the big stick!”

  “Down, girl. I agree, it’s time for the big stick. What about an even bigger stick?”

  “What do you mean a bigger stick? I have documented evidence of malfeasance. We’ll get videotapes of the disaster. Independent engineers will come in from all over the country and show what a mess we made. Beavers could have built better dams than we did. I’ve got a big stick.”

  “No Red, I mean maybe we can marshal our forces and really get someone’s attention. I am talking about bringing in some of my well-heeled environmental buddies. We can help with getting the best attorneys. You’ll need expert witnesses. We have a stable of the best testifying experts in everything. We know which courts to go to. Melinda, we have been in the litigation business for a long time and have learned a trick or two. We can help a lot and would love to do it. What do you think?”

  “I don’t know, Bob. I have a simple case. The Army Corps of Engineers didn’t do their job. I don’t care if it was politics or carelessness. It doesn’t matter. The engineering was wrong. The Corps didn’t see to it that sturdy cat three levees were built. That’s the job they signed on for and that’s the job they didn’t do. You know me, straightforward and to the point. Why would I want to make a simple deal into some kind of environmental Armageddon?”

  “Look Melinda, you well know we do have an environmental disaster. First, the Corps tried to reengineer the mighty Mississippi. To do this they destroyed the wetlands. When they destroyed the wetlands, they prevented nature’s own self-repair and protection. There goes the buffer to storm surges. Next, they ignored rising seawaters and global warming. The warming causes the tides to rise and causes more fierce storms. Those levees the Corp
s engineered might have held if it hadn’t been for global warming. So if we don’t join you, the Corps will argue it wasn’t their fault, just a natural disaster beyond their control. The lawyers call that an act of God. With God on their side, you could easily lose.”

  “Bob, I just don’t know. I’m not completely sold on this global warming stuff. I just haven’t seen consistent data to support the theory. And you know it’s just one more theory. What about the fifteen-hundred-year cycles? For thousands of years the earth has warmed and cooled one or two degrees Celsius. Ice core samples prove it.”

  “You’re an intelligent woman, better educated and smarter than most, not to mention…never mind, you told me not to go there, didn’t you? If you don’t believe our experts, we will get off the case at any time. Besides, you need to finish cooling off and figure out if you really want to spend the first three years of your retirement in court. They will investigate every aspect of your life, talk to every girlfriend, boyfriend, even your dog. John won’t be left alone either. He’ll be in the thick of it. And you know some of your old bosses won’t be very happy.

  “Melinda, what we can offer is expertise. We’ve been through the ringer and can help you every step of the way. Why not think about it for a week or so and give me a call. Even if you want to go it alone, I can give you some guidance. But when you take on the federal government, you need lots of money, good lawyers, and lots of sticks. One big one is not enough!” He grinned as he finished his wine. She was not amused.

  “Think about it first. Then give me a ring.

  “And Red, one last very important thing. In any court you have to have what lawyers call ‘standing.’ That means you have a right to sue in that particular court. This is especially true in federal court, where you need to be. Talk to any good lawyer and I am sure they will tell you that a lone citizen like you cannot sue FEMA or the Army Corps of Engineers. We environmental groups have unique standing, special legal standing. We have the legal ability to file suit where others can’t—a special law was created by our friends in Congress back when the politicians and the people cared a lot more about the environment. We still have that power. You may need us just to keep your case alive. You don’t want to get thrown out on your ear because of some technicality.” Deerman smiled smugly and stuck out his rugged jaw.

  Melinda turned back toward Deerman. She walked toward him and started to give him a peck on the cheek but thought better of it. Instead, she stuck out her hand. “Thanks, Bob. You’re a good friend. I’ll let you know.” She turned sharply, hiding her furrowed brow, and departed.

  Melinda quietly bided her last few weeks in the Corps. She was uncharacteristically mute and stayed below the radar. She was glad to be a short-timer and quickly turned down her boss’s request she extend her tour to help with the cleanup. “Sorry, Colonel. Been planning my retirement for a long time. Besides, we both know this mess will take years to fix.”

  On October 1, Major Melinda Lewis reverted to Melinda Lewis, citizen. Make that Dr. Lewis. She stepped out of her uniform and into the role of litigator. It was like going from the quartermaster corps to Ranger Airborne or US Marine. She interviewed several attorneys who quickly confirmed Deerman’s advice. As a solitary individual not even injured or harmed by Katrina, she could not bring the mega lawsuit she envisioned. She could only gain the legal standing she needed by joining forces with some environmentalists. She called Deerman and told him of her decision to join with him. Elated, Deerman said he would make some preliminary arrangements. He already had a big time trial lawyer in mind. Deerman would set up an initial meeting within a week in Houston. Deerman chose Houston because the federal courts of New Orleans were moving there temporarily while their New Orleans quarters were repaired.

  6 Hurricane Torts

  M ELINDA LEWIS WAS ALMOST THE last person to enter the elaborate courtroom. This courtroom was not at the courthouse but sitting high above the Houston skyline in the Lyric Center Building. Lawyer Richard O’Reilly held court at the end of a mammoth conference table, complete with cherry inlay and burled walnut. He wore his usual dark blue suit with a stylish red power tie. He seemed to tower beyond his full six foot four inches. O’Reilly was warm and ingratiating, especially for his new clients.

  The seating was carefully orchestrated. “Come in Dr. Lewis,” O’Reilly said and beckoned for her to take a seat. “We’ve been waiting on you to begin.” O’Reilly flashed a big smile as he quickly let his eyes glide from her tousled red hair, down her attractive form, and to her modest heels with pointed toes.

  Seated first around the richly inlaid table was Bob Deerman. He was now executive director of the Sahara Club. He sat ensconced at O’Reilly’s right hand. The Sahara Club was one of the oldest and most respected groups in the environmental movement. The club had first pioneered the protection of endangered species then expanded their green horizons. It was not until Deerman took the reins that the group started extensively using the court system to achieve its objectives. The legislative process had become bogged down, but favorable laws passed in the 1970s gave the organization the opportunity to be as formidable in the federal courts as the federal government itself in enforcing environmental protection, that is, environmentalism as the club saw it. When the feds failed to act because of politics or the bureaucratic morass, Sahara stood ready to engage. The club was joined by reinforcements.

  The reinforcements included other battle wise troops gathered around the table. The collection consisted of lawyers and directors from the elites of Earthcore, Natureone, Greenpreserve, plus a few members of several lesser-known groups.

  The consortium recommended O’Reilly for several reasons. First, the New Orleans federal courts were essentially moved to Houston after Katrina, so a Houston law firm might be more helpful than importing one of the famous environmental specialists from California or New York. Second, O’Reilly was feared as one of the top two trial lawyers in the state if not the nation. His work ethic was legendary, and no one in the country had better results on the plaintiff side. Then too, O’Reilly had his own press agent who knew how to work the media. Finally, O’Reilly agreed to charge only a 25 percent contingent fee rather than his usual 40 percent but with a catch: the group of plaintiffs had to front the expected litigation expenses of five million dollars. The five million was a nonrefundable retainer so that if Melinda or anyone in the group got cold feet, O’Reilly would not be out of pocket for expenses or his time working on the case to that point.

  O’Reilly called the meeting to order and had everyone introduce themselves around the table. He began. “I think you have a superb case that will play well to the country. We have Melinda’s inside expertise about the inner workings of the Army Corps of Engineers. We have memos and a partial paper trail that is almost as good as the asbestos and Vioxx cases. We have the expertise and experts of Greenpreserve, Earthcore, Natureone, and Sahara. I am counting on some of your lawyers to round up our experts on the global-warming and sea change issues. I will handle all the main witnesses and cross-examination of the government’s people. I have three more major trials this year, and after that I will be all yours. We want to get to trial within the year while the public still can recall the colossal mess FEMA made. People have short memories. We need to jump on this while it’s still hot and get out before everyone forgets. Hurricane season will be the perfect time to try the case. Any questions?”

  The dapperly clad Earthcore lawyer from San Francisco spoke up. He stood, as if to punctuate his point. “Richard, what about these Houston juries? I hear they can be, shall we say, a little conservative?”

  “True, but the good news is when we hit it won’t be for peanuts. They are used to big oil profits and big numbers. You remember the Pennzoil-Texaco ten billion dollar verdict? It’s about picking the right jury and telling a story people can understand. When we tell the jury we are suing for one trillion dollars, I guarantee I can get rid of most of the tort reform crowd. They will howl like stuck pigs. But we h
ave to demand a jury right away.

  “We want a jury, not a judge, to decide the money. Most of the federal court judges here in Houston were picked by the two Bushes and would never grant a multi-billion dollar verdict. The good thing is that they will give us a fair shot and know the law. Even the few Clinton judges are damn good ones. Of course, we will file our case in the New Orleans courts and should be assigned a judge from there.

  “Anyway, when we ring the bell and the Feds appeal, I would prefer to have a conservative, well respected judge who will keep the record clean. Otherwise the Fifth Circuit Court of Appeals will just throw the verdict out. You know they don’t like big verdicts.

  “The first key will be the jury we pick. Who knows? We might get lucky and move the court back to New Orleans. We’d be much better off there because everyone knows what really happened. And the juries there are terrific. They may even be sitting on a few burrs in their saddles.”

  Lewis interjected, “I don’t care where we try this case. We have the facts, O’Reilly has the law, and now we have all of you to help. I really appreciate Bob and you all for volunteering to help. We couldn’t do it without you. Thanks to all of you.”

  “No. Thank you for letting us help” Deerman responded. He had to grin. Just look around at this talent, the leading environmental groups, a passionate insider, and one of the best guns west of the Mississippi. Not to mention mammoth damages. Deerman had long ago learned a good lawsuit was like a three-legged stool: good plaintiff, good damages, and a defendant with deep pockets.