by Don Wittig
Lewis stood nearly at attention in one well practiced move. She wore an impeccably tailored navy-blue suit with a white blouse. Her suit purposefully down-played her feminine physique. On her lapel she wore the miniature castle insignia of the Corps of Engineers. She advanced to the witness chair with an alert, if not slightly anxious, air. Her persona was authentic, and she exuded a certain power; she was anything but a weak-willed woman. After the marshal administered the oath, she turned toward the jury with an understated smile and began.
“My name is Melinda Mae Lewis. I am a former resident of New Orleans and currently live with my husband John in Lafayette. I served twenty-five years in the Army Corps of Engineers and retired as a major October first, 2005. I was deputy assistant in charge of the New Orleans office when I left the service that October.”
“Please tell us your educational background.”
“Yes, I received my bachelor of science degree in civil engineering from St. Louis University. I received my master’s at Cal Tech and PhD at MIT, all in engineering. I have also attended a number of postgraduate courses over the years, including training in advanced hydrodynamic analysis. We studied the effects of currents, tidal actions, and fluids in a non-static environment.”
“How did you come to choose the Army Corps of Engineers as your profession?”
“I tried teaching for a few years. It’s a little discouraging to be one of the few women in engineering, but mostly I am a person of action, not particularly an academic type. I like to read and study, but I would rather help make things better and safer for people. The army provided me with a great opportunity to practice my profession and help solve significant problems. The army also afforded John and me the opportunity to work and live on the Chesapeake Bay, Galveston, the Carolinas, and of course New Orleans.”
“Major Lewis, the judge has given us a limited amount of time to put on our case so let’s jump right into your testimony, unless there is anything else the jury needs to know about your background?”
“Well, I would like to say that I love the Corps and the people I worked with. The only reason I am one of the complainants in this case is that I know the Corps could do better, if only the government and politicians would let them.”
“Perhaps we’ll have time to get into that later. First, the court and jury want to know what happened with Katrina. You were at home in New Orleans then went to your office on August twentyeighth. Is that correct?”
“Yes, I was following Katrina, but not too closely. I honestly believed the weathercasters when they said the storm would hit Florida or go up the East Coast. When the hurricane changed course and went across the Keys into the Gulf, my instincts told me we could be in trouble. I started to be more concerned. When Katrina started her northwestern Gulf course, I watched more intently. I went to the office Sunday so I would have better access to weather instruments, my computers, and charts. We also have television there and a direct feed into NOAA’s hurricane center in Miami. There wasn’t a whole lot I could do though because the management of flood gates, evacuations, and most pre-storm activities are controlled by state and local authorities. As deputy in charge of our office, I thought someone needed to be there to assist local authorities, if they asked.”
“What were your thoughts as the hurricane approached New Orleans?”
“I was very concerned about a direct hit on New Orleans. The levees were supposed to have been built to withstand a cat three storm, but they were barely able to withstand a cat two in many areas due to subsidence and shoddy construction. I envisioned a twenty-five-foot storm surge making a direct hit on New Orleans and wiping the city off the charts. A storm surge that large would be like an unstoppable tsunami. When Katrina finally moved more to the east, I was relieved. I thought we were spared. I felt badly for Biloxi and Gulfport. When the storm actually hit seventy miles east of New Orleans on the Louisiana-Mississippi line, I called my husband and told him I would meet him in Lake Charles. Fortunately, he was not far away in Houston on business. Then we started to get the news about the levees. It was downhill from there.”
“Before the storm hit, what did you consider to be the worstcase scenario?”
“As I testified, the worst case would have been a direct tsunami type wave hitting the entire coastline and flooding many miles inland. That actually happened in Mississippi and Alabama. My personal fear was a cat three or cat four wind and surge combination would envelope New Orleans in a pincer movement with water coming in from both the Gulf side and then flooding down from Lake Pontchartrain. That’s almost what happened. But it wasn’t Katrina that got New Orleans.”
The courtroom grew ominously silent. What did she mean Katrina didn’t get the Big Easy? Of course it did! Judge Martin leaned forward. Reporters groped for their pens. Everyone in the courtroom except Bradley Mack knew a bombshell was about to be detonated. Mack was doodling, drawing cartoons of Bob Deerman and Ms. Lewis. He was uncharacteristically bored with all the stuff everyone knew. He wanted action. The silence alerted him and the doodling halted. He stared with piercing eyes at the witness.
As if on cue, O’Reilly followed up. “If it wasn’t Katrina that got New Orleans, what did?”
“New Orleans was not a natural disaster caused by Katrina. There is only so much you can do with a storm. What happened to New Orleans was a man-made disaster caused by the Corps of Engineers.”
Mack leaped to his feet. “Objection! No foundation! Pure opinion and speculation!”
“Sustained!” roared Judge Martin. “Mr. O’Reilly, you know better than to have your witness state unfounded conclusions! We’ll take a fifteen-minute recess. Mr. O’Reilly, educate your witness about the rules of evidence. I will not tolerate any such grandstanding in my courtroom. We are in recess.”
O’Reilly slowly approached Lewis and whispered in her ear. “You were perfect. We’ll do it by the numbers after recess.”
As soon as Judge Martin exited, the dead silence erupted into loud buzzing. Several reporters bolted for the doors.
“Man-made disaster!”
“What a line,” a CNN reporter blurted out as he rushed to the courthouse exit. He punched his BlackBerry and hit speed dial to call in his story.
O’Reilly smiled.
Avrum whispered a not-so-subtle “Yes!”
Mack arrested a sneer before it could engulf his entire face.
17 Dr. Lewis Continues
AFTER THE BREAK O’REILLY RESUMED his questioning. “Major Lewis, do you prefer to be called major, Ms., doctor, or what?” “Well, since I have retired, I actually prefer doctor, but it really doesn’t much matter to me.” Lewis testified with studied nonchalance and professionalism.
“Dr. Lewis, the court has instructed us to set up the facts before you give any of your conclusions. You do understand that?”
“Yes, of course. I have only testified a few times, but I understand that the judge wants me to follow the rules of evidence. I apologize to the court and jury if I got ahead of myself.”
“Very well, Dr. Lewis,” the court intoned, nodding and exhibiting his southern charm. “Let’s proceed.”
Several jurors smiled in appreciation and approval of both the judge and Dr. Lewis.
“Dr. Lewis, please explain for us what happened after Katrina hit. Let’s start with Lake Pontchartrain. Is that a good place to begin?”
“Yes. Lake Pontchartrain was one of my biggest concerns before the storm. I have since changed my opinion, which I will explain later. Pontchartrain is a shallow-water lake. By that I mean it is wide and long but not very deep. The average depth is only eight feet. There are miles and miles of levees on the south shores of the lake to protect New Orleans from any flooding. Those levees did their job and held up well, even when they were overtopped. But on the southeast corner of the lake, there is a large waterway or inlet that connects to Lake Borgne and the Gulf of Mexico.”
“Dr. Lewis, what is the significance of Lake Borgne and the Gulf?”
“The Gulf is the source of any hurricane surge that affects New Orleans. Borgne is a large tidal lake, almost like a bay, that feeds not only Lake Pontchartrain with any storm surge but also makes the Industrial Canal and other canals vulnerable. The same is true for the Intracoastal Waterway and of course the Mississippi RiverGulf Outlet Canal which the locals call the MRGO canal.”
“Let me stop you there. We’ll get into the canals in a moment. Let’s stick with Lake Pontchartrain for now. You said the lake levees held. Then what caused the flooding in that area south of the lake?’
“After Hurricane Betsy in 1965, three drainage canals were built to carry floodwaters out of New Orleans and into Pontchartrain. It’s a little complicated, but the Mississippi River is above sea level as it passes through New Orleans. New Orleans is largely below sea level, and Pontchartrain is about at sea level. It’s much easier and more desirable to drain the city into Pontchartrain rather than having to pump drainage even farther uphill into the Mississippi. Besides, the Mississippi has its own flooding problems. These drainage canals in the city were ordered constructed after Hurricane Betsy went right up the Mississippi River, overflowed the river levees, and flooded the city. In other words, the surge from Betsy went up the Mississippi, topped the river levees, and flooded New Orleans.” Lewis paused and looked directly into the eyes of the jurors. The jury seemed to appreciate her candor and demeanor.
“Unlike Betsy, when Katrina sent her storm surge into Lake Borgne, it flooded Pontchartrain. Pontchartrain in turn took the path of least resistance. That path was up the drainage canals. Those are some of the levees that failed. Not the levees on Pontchartrain, but the levees along the drainage canals. Specifically, that is what happened at the Seventeenth Street levee and the London Street levee. Does that make sense?”
“Of course. The storm surge pushed into both Lake Borgne and Pontchartrain. Pontchartrain then overflowed into the drainage canals. The canal levees failed, and New Orleans was inundated.”
“Objection!”
“Sustained!”
“I withdraw the question. OK, Dr. Lewis, these floodwaters help to explain the London and Seventeenth Street Canal flooding. Now let’s turn to Mr. Go. You have heard the chant ‘Mr. Go has got to go’? Tell the judge and jury about that situation.”
“Mr. Go is another man-made canal. The initials are actually ‘MRGO,’ and so we have the nickname ‘Mr. Go.’ MRGO are the initials for Mississippi River Gulf-Outlet. This is probably the most controversial thing the Corps has done in Louisiana in recent years. Environmentalists have been outraged. The canal has been a disaster. In fact, there is another lawsuit….”
Mack’s instantaneous objection was quickly sustained by Judge Martin.
“The canal is supposed to be a shortcut from New Orleans to the Gulf. It is eighty-six miles long. The distance of the original Mississippi River outlet is over one hundred miles. So theoretically, shipping on the MRGO could save time, fuel, and money. One trouble was the pilots hated it because it cost them money. And they carry a big stick in shipping. Only one or two ships a day used the MRGO canal, and it was in dire need of dredging. It’s supposed to be thirty-six feet deep for clearance. But it has silted in to maybe only twenty-four feet deep. In other words, the clearance was reduced by twelve feet, so the bigger ships couldn’t use it anyway.
“The environmentalists claim that the additional canal further erodes the natural wetlands. They argue it’s a waste of resources, adds to subsidence, and messes up the saltwater and fresh water environs. Many environmentalists and locals also argue every new canal not only alters the ecology but also in turn creates even more erosion. I don’t agree with each and every one of those claims, but that’s what some of the controversy is about. Most everyone here wants the Corps to permanently shut down this canal. One local senator wants to pick up a bunch of free dilapidated ships and scuttle them in the canal to speed up its closure. In short, Mr. Go is a mess and a political hot potato.”
Several jurors perked up with Lewis’s exposition about the notorious “Mr. Go” canal. They knew this was a long-running controversy that Katrina brought to a head. Mack feigned indifference.
“More importantly, and even worse, is what we believe Mr. Go did to New Orleans. It helped cause the Industrial Canal to breach at several points and caused the worst flooding in the east part of the city, especially the Ninth Ward. When the surge came into Lake Borgne, it then divided between going to the northeast into Pontchartrain and northwest into the Industrial Canal. The surge pushing northwest caused a funnel effect between the Industrial Canal and the ICW. Sorry about the alphabet soup. ICW is the Intracoastal Waterway. Anyway, the floodwaters, accelerated by the funnel effect, then poured into the eastern part of the city and the Ninth Ward after the Industrial Canal was breached. The breach was so big that a barge went through one of the breach holes. Another report suggested a commercial barge actually caused one of the breaches. The devastation was unbelievable. With the prior controversies over Mr. Go and then its massive contribution to the flooding of New Orleans, I am afraid that is one Corps project that is over. Does that answer your question?”
“Yes,” replied a delighted O’Reilly. Seldom in his forty-plusyear career did he have the luxury of such an articulate, intelligent, and even attractive witness. Lewis came across as both caring and extremely knowledgeable. I doubt Mack can lay a glove on her, he thought. Even more importantly, the jury seemed very intent as they listened to her testimony. They seemed to appreciate her thoughtful and honest approach. But some of the jurors were challenged by the complexity of all the waterways, not to mention the inner workings of hydrodynamics. The challenge of the trial advocate was to make it all comprehensible.
“OK, Dr. Lewis, tell us a little about the Orleans Avenue Canal. The Orleans Avenue Canal along with the London and Seventh Street Canals are part of the New Orleans drainage you told us about. Correct?”
“Yes. The Orleans Canal held up better than the other two but still had flooding. Most of the flooding from this canal came from over-topping. Over-topping simply means the water went over the top. It’s not as bad as the severe ruptures that occurred on the Industrial Canal, for example. What’s weird is that one side of a canal might flood and the other side stays relatively dry. You can still see the effects today. Some neighborhoods look fine, but right across the canal there’s devastation. Anyway, the biggest problem with the Orleans Canal was the flooding of the pumps. When the pumping stations flooded, they were inoperable. Some still have not been repaired. So when the water overtops the levees, it can’t get out because the levees work both ways. It’s like pouring water into a tub with no drain. Once the water is in it, it can’t get out.”
“Other problems beside the pumps?”
“Another problem with the Orleans Canal, besides some questionable maintenance, was the several different heights of the levees. Not only were the levee heights different, but their composition varied from area to area. You might have a concrete levee next to an earthen levee. Incredibly, the earthen levee would be several feet lower than the concrete levee. I am sure the jury could picture what would happen. The water pours over the lowest point, the point of least resistance. Once the water overtops a levee, then it can undermine the support structure of the lower levee or even a higher adjacent levee. The Orleans Canal was a disaster waiting to happen. Fortunately, one of our few fortunate events, there were no huge breaches like what happened at the Seventeenth, London, and Industrial Canals. Let’s just say New Orleans was lucky things were not as bad as they could have been. After all, the Lake Pontchartrain levees did hold.”
DON WITTIG “Looks like a good place to break. Ladies and gentlemen of the jury, we’ll take our lunch break. Be back in the jury room by one fifteen sharp.” Judge Martin was pleased with the pace of the trial. My life is a lot easier with two pros like O’Reilly and Mack, he mused. The judge finished his notes and rose to return to his chambers. Sure good to be back home in New O
rleans, in my own courtroom and my own chambers.
18 The Corps Is Negligent
“L ADIES AND GENTLEMEN OF THE jury, thank you for your punctuality. Dr. Lewis, you may return to the witness stand. Mr. O’Reilly, please proceed.” Judge Martin covered a small yawn. He had grown accustomed to a twelve-minute power nap, which he was not afforded over the lunch hour due to several rulings he had to make on other cases. The press of court business does not stop simply because a judge is in trial.
“Dr. Lewis, before lunch you explained to us how several of the New Orleans levees either ruptured or were overtopped. I would now like to change our focus to the legal responsibility or causes of these disasters. Do you have an opinion, based upon your extensive experience with the Army Corps of Engineers, your many years of applied engineering, your splendid educational background, and your comprehensive knowledge of the facts, about the Corps’ responsibilities for the breaches of the levees in New Orleans following Katrina?”
“Yes, I have an opinion.”
“Objection,” Mack snapped. “The question calls for legal conclusions and speculation. Ms. Lewis’s opinions have not been demonstrated to be based upon reliable scientific methods.” Mack knew the judge had already overruled these objections before trial. This objection was for the benefit of the jury in order to try to cast doubt on Dr. Lewis’s opinions.
“Overruled!” Judge Martin snapped as he peered over his bifocals with a discerning glance toward Mack. Mack knew exactly what he was doing, and Judge Martin knew exactly what Mack was up to as well.
“Please state that opinion.”
“The Army Corps of Engineers did not faithfully follow the professional standards of civil engineering and failed to follow the laws of physics with regard to the dynamics of fluids. If I may explain?”
