by Don Wittig
O’Reilly pressed on. “So, Dr. Lewis, it’s not as if the Army Corps of Engineers didn’t know what a hurricane could do to southern Louisiana, is it?”
“Correct. We knew what could happen. In fact, hurricanes and flooding are some of the most-studied disasters and potential disasters in the United States. One of the studies was completed in 2000. It was called ‘Unwatering Plan, Greater Metropolitan Area, New Orleans.’ This plan suggested that a cat four or five would cause overtopping and also told us to expect erosion and breaches of the levees.”
“But, Dr. Lewis, you said the study dealt with a cat four or five hurricane. Katrina was not that strong when she hit. So why did we have cat four or five damage from a smaller, weaker storm?”
“Many levees failed because they were washed out after the overtopping. Some simply gave way. I told you about the funneling effect in the MRGO channel and Industrial Canal. This was exacerbated by the proximity of the ICW. The London Street and Seventeenth Street Canal levees breached because they weren’t deep enough, had the I instead of T design, and rested on weak soils, including peat and sand.”
“What happened after Katrina when water from Lake Pontchartrain went up the London and Seventeenth Street Canals?”
“The pressure was just too great, and parts of the levee walls collapsed. There was also a gap between the steel sheet piles and levee material. That allowed water to get into the weaker soils. Then the walls gave way. Most of the studies showed these two canals breached even without overtopping.”
“Has the Corps taken greater precautions in the rebuild of the levees post-Katrina?”
Mack jumped to his feet. “Objection, your honor. The projects and engineering that went on after August twenty-ninth, 2005, are not relevant and cannot be used to prove negligence. The law is clear....”
“Sustained. Ask your next question, Mr. O’Reilly.”
“Dr. Lewis, are there steps that you are certain the Corps could have taken and should have taken before Katrina to prevent or at least mediate the disaster that afflicted New Orleans from the storm?”
“Yes, of course.”
Mack knew he’d been had. He could object again but it would only draw more attention to the inevitable answers. He bit his tongue. A good lawyer will always find a way to get the evidence before the jury.
“And what were the feasible steps that could have been taken by the Corps?” O’Reilly maneuvered on.
“First, with regard to the wetlands, the Corps should not have proposed and dug the MRGO canal. This needlessly destroyed wetlands, increased salinity, and reduced the area’s ability to absorb the pre-hurricane tides. In my earlier testimony, I failed to mention that one of the most important functions of wetlands is to provide a basin for high tides. The destruction of tens of thousands of acres of wetlands also destroys the ability of the area to slow and hold greater than normal tides. With greater wetlands, there would be less water to be pushed into and over the levees.”
“Go ahead.”
“Next, the Corps could and should have gotten Congress to authorize armoring the backsides of levees to protect them from erosion. Also, transition points between different sections of the levees should have been beefed up. This could have been done with concrete, steel, rock, and riprap. The use of T walls instead of I walls is another way to shore up the levees.”
“What about the pump stations?”
“One of the older studies, in 2000 I believe, showed it would take nine weeks to unwater or drain the New Orleans basin in the event of a Major hurricane. And that was if the equipment all worked. Some of the pumps in New Orleans were over a hundred years old. Many were located below sea level. We should have designed and insisted that the pumps be above flood stage and that the housing be hardened to protect the pumps and operators from storms. They also need auxiliary power because we know in a hurricane electrical transmissions will be interrupted.”
Mack was fuming. His face turned crimson. He knew what O’Reilly and Lewis were doing to him. They had studied the Corps’ own reports after the storm and were telling the jury what the Corps actually did post-Katrina. He knew the evidence was not admissible but O’Reilly was sneaking it in anyway. He felt hamstrung. Damned if he did object, damned if he didn’t. Oh well, he muttered to himself, I’ve got a question or two for the good doctor.
O’Reilly continued. “What about floodgates in the canals?”
“We talked about that before. The Corps actually proposed floodgates on the outfall canals—that is, the Orleans, London, and Seventeenth Street Canals. That was rejected. I suggest that Congress and the Corps of Engineers shouldn’t have taken no for an answer. It is essential for flood control that these canals have permanent floodgates because we can see what happened without them. Lake Pontchartrain should also have navigable floodgates, as well as all other waterways going into the area. Remember, the floodwaters will flow to the point of least resistance, downstream.”
Melinda Lewis was feeling very comfortable on the witness stand. She had been there before, usually testifying for her Corps of Engineers. Now she felt she was helping the Corps going forward by speaking the sometimes uncomfortable truth about some of the missteps of the Corps along the way. She continued her dialogue.
“I also mentioned before that the steel sheeting in the levee and canal walls must be much deeper than twelve or fifteen feet. Remember, the soils in the lower Mississippi Valley around New Orleans are like a sponge. There is peat and sand and no rock. The sheet pilings should be at least fifty feet in my opinion. Even then they must be reinforced and protected from erosion. The better approach is to keep floodwaters out of the drainage canals and make sure you have unwatering pumps that can function after a flood.”
“Thank you, Dr. Lewis. Anything else?”
“I think the Corps has done much better after Katrina than they did after Betsy.”
“Pass the witness.”
Melinda Lewis immediately felt her comfort level diminish. Her chest tightened slightly. Her mouth was dry. Would Mack dare to delve into my personal life again? Ever since he had treated her so mildly during her deposition, Melinda was perplexed by which way Mack would attack. She took a deep breath and a small swallow of water from the glass beside the witness chair. The deputy US marshal stared at her. He didn’t get the dynamic between Lewis and Mack. He got the warrior thing between Mack and O’Reilly. This man-woman thing was too mystifying.
Mack eagerly strolled to the podium. Without notes, he carefully laid the trap. “Dr. Lewis, you mentioned there should have been floodgates on the London, Orleans, and Seventeenth Street Canals, correct?”
“Yes.”
“And before Katrina, the Corps proposed floodgates not only on these outfall canals but also on Lake Pontchartrain. A combination of local interests, environmentalists, and Congress prevented the Corps from doing the best engineering job they could. Am I correct?”
“Yes.”
“And the Corps turned over the pumping stations, the levee maintenance, and even the control of most of the levees to state and local agencies?”
“Yes.”
“So I ask you, because the Corps’ only remaining responsibility was a shared annual inspection, a joint duty with these local entities, what percentage of the responsibility for the failures of the London and Seventeenth Street Canals would you place on the Corps and what percentage of responsibility would you place on the state of Louisiana, the levee boards, and other local agencies?”
“Probably somewhere between ninety-ten and eighty-twenty. Ten to twenty percent on the Corps.”
The courtroom gasped. Mack smiled and returned to counsel table.
O’Reilly leaped to his feet and asked to approach the bench. “May we have a fifteen-minute recess?” he beseeched the judge.
Judge Martin said with a twinkle in his eyes, “Ladies and gentlemen of the jury, we’ll take our morning recess a little early today. Please be back at ten o’clock.”
The you
nger members of the press again headed for the exits and their iPhones and BlackBerrys. One of the younger newcomers remarked, “Wow. The Corps was only twenty percent responsible. Unbelievable.” The savvy reporters stuck around. They knew it was just one more round in a heavyweight fight.
37 The Back Side of the Storm
O’REILLY AND LEWIS CONFERRED IN a nearby ready room. “Where did that come from?” O’Reilly scolded. “It was kind of a trick question,” Lewis responded. “Did you notice he only asked about London and Seventeenth Street Canals? I told you before we started this was our weakest link. The locals completely control those canals. Mack knew it and exploited it. Why don’t you ask me about the Mississippi River, the MRGO, and Industrial Canals? You might like that answer better.” O’Reilly took a deep breath and they returned to the courtroom.
O’Reilly stood and looked at Mack. “I assume Mr. Mack passed the witness. Dr. Lewis, a few more questions. I notice my worthy adversary carefully picked his words and somehow left out Lake Borgne, the Industrial and MRGO Canals, the ICW, and the Mississippi River. What percentage of responsibility for flooding did the Corps have resulting from the engineering of the Mississippi River and MRGO levees?”
“Objection. The Corps of Engineers was ordered by Congress and that river commission to construct the Mississippi River levees exactly as they are to protect shipping and prevent flooding. Furthermore, any actions by the Corps regarding the Mississippi are barred by the ten-year statute of repose.”
“Sustained. Rephrase your question, Mr. O’Reilly.”
KATRINA: THE JURY ANSWERS Mack grinned.
“Dr. Lewis, let’s just focus then on Lake Borgne and the MRGO Canal. We know nature put Lake Borgne southeast of New Orleans. How did the MRGO Canal get there?”
“In response to some local interest from St. Bernard and Plaquemines Parishes, the Corps came up with a plan to shorten the trip from the Mississippi River to the Gulf outlet. Remember, MRGO stands for Mississippi River Gulf Outlet. The Corps proposed, engineered, and built or supervised the building of the MRGO. The jury already heard about the funnel effect from the Lake Borgne surge so I know you don’t want me to repeat that.”
“Correct, I just want to ask you the same question Mr. Mack asked you. What percentage of the responsibility for the failures of the MRGO Canal would you place on the Corps and what percentage of responsibility would you place on the state of Louisiana, the levee boards, and other local agencies?”
“Objection! It’s up to the jury to decide the respective responsibility of the state and local agencies.” Mack knew what Judge Martin would do. He objected to distract the jury and remind them of their job.
“Overruled. You opened the door, Mr. Mack.”
“In my opinion, the Corps was eighty percent responsible for the destruction brought about by the breaches of the MRGO Canal. The state and local agencies were maybe twenty percent responsible.”
“Thank you, Dr. Lewis. No further questions.”
Mack was perplexed. Should he ask about the Industrial Canal, the ICW, or even Katrina? He decided upon a middle course.
“Dr. Lewis, there was at least one more huge factor in all this. Her name was Katrina. Katrina was the most costly and devastating storm ever to hit the Gulf Coast area, was she not?
“True. But I was speaking in terms of foreseeable and human causes. It’s like the three pigs. They knew the big bad wolf was coming. If you build your house out of straw or sticks, there’s not much hope when the winds come.”
“Very good, Ms. Lewis,” Mack said red-faced. “But I thought you already told us the area was like a sponge. No rocks or bricks for the little pigs to use, at least down to twenty-five hundred feet. No further questions. Pass the witness.”
O’Reilly debated whether to let Mack get away with his cheap little television trick. Melinda had done her part. Our rebuttal case went well enough. Quit while you are ahead, he decided. “Nothing further. The Complainants rest.”
38 Both Sides Rest
J UDGE MARTIN PEERED OVER HIS spectacles at the titan trial lawyers. Were both sides really going to stop? Both O’Reilly and Mack had announced to the court they were finished with the evidence. The judge sent the jury home early in the afternoon. He invited the lawyers and their associates into his chambers to allow them to object to the court’s charge. As was his practice, the instructions to the jury were already prepared.
“I want to thank you gentlemen for keeping our schedule. I’m sure the jury appreciates it too. My staff has already prepared the charge according to my directions. I’ll give you a moment to review it before I take your objections. It’s really very simple. Essentially, I ask whether the Corps negligently caused any damages. If they did cause damages, how much money should be awarded? And then the jury is asked to assess the percentage of responsibility of the Army Corps of Engineers for the damages in the New Orleans area.”
O’Reilly was ecstatic. Mack frowned, knowing a simple, straightforward jury charge usually was to the benefit of the complainants. However, he had the one question he needed the most, the percentage of responsibility. This gave him the opportunity to put the blame where it really belonged.
Judge Martin studied the faces of the attorneys. He knew that this jury charge also gave him the most leeway to reform any runaway verdict. He was content to let the jury do what they wanted, then he would take a closer, eagle-eye look at the result. He smiled as he awaited their comments.
O’Reilly piped up first. “We’ll have no objections to the charge, your honor.”
Mack took a deep breath. He eyed the judge. “May it please the court, I would suggest we also add the other responsible parties. The Corps did not operate in a vacuum. We should list the state of Louisiana and all the surrounding parishes or at least Orleans Parish. Certainly the levee boards in Orleans, Bernard, and Picayunes should be listed. We should also list the respective water and sewer boards. I would further object that there is no evidence of causation by the Corps.”
“Your requested additions to the charge are denied, and your objections are overruled. How long do you folks need to argue? I’m thinking about an hour and a half per side. How does that sound?”
“Fine by the complainants.”
“More than enough time,” responded Mack.
“Very well then gentlemen. We’ll see you tomorrow morning at nine o’clock. I look forward to your arguments. Good afternoon.”
All stood and the attorneys paraded out of chambers to meet an anxious press. For the first time in the trial, O’Reilly said nothing.
Deerman could not control himself. “The judge gave us the jury charge we wanted. We are looking forward to a great victory for the environment and for the people of New Orleans!” Deerman anticipated the biggest environmental victory since the passage of the Endangered Species Act.
Mack had to respond. “We have a good judge, a good jury, and a good charge. I am confident the jury will do what’s right. This lawsuit is not about the environment, safety, or even good levees. This case has always been all about the money! It’s always about money.” Mack stormed back to his hotel to prepare for the argument of his life. The adrenalin was pumping. He remembered why he had always wanted to be a trial lawyer. But, he also knew he was getting into the age range when most sensible barristers shut it down and made room for the young bucks. It was almost too exciting for his well-worn ticker.
39 O’Reilly Opens
B OTH SIDES RETREATED TO THEIR respective war rooms in nearby hotels. Each master huddled with his staff for last-minute comments and suggestions. Ultimately, each of the courtroom giants would rely primarily on his own intuition, memory, and well-honed skills, which were not taught in academia. Both retired early to the solitude of their private suites and rested up for the final skirmish.
The next morning, O’Reilly finished his morning run, glanced through the morning paper, and arrived at court thirty minutes early to verify the setup of his PowerPoint presentation a
nd the assemblage of his color charts and photos. He then sat down and relaxed, waiting for the judge’s invitation to begin his summation.
“Mr. O’Reilly, you may proceed.”
“Thank you, your honor.
“Let’s take a look at the evidence one last time, shall we? Fact
one: Katrina was not a natural disaster. Katrina bypassed New Orleans and devastated Mississippi and Alabama. Mississippi and Alabama had natural disasters. New Orleans, in Dr. Lewis’s own words, was ‘a man-made disaster.’
“What did Major Lewis say about the levee system before Katrina? You’ll recall she wasn’t sure the levees could withstand a cat two storm. We all know the New Orleans area is sitting on a sponge. And if we all know it, do you think the Corps of Engineers knew it when they designed and contracted to build our storm protection? Think about what could have happened if Katrina had stayed a cat four. What if New Orleans had taken a direct hit instead of a glancing blow?
“You also remember what Major Lewis said about the storm surge pushing water into Lake Borgne and Lake Pontchartrain. Where did Pontchartrain drain? Pontchartrain drained into the heart of New Orleans, right down the drainage canals: London Avenue, Seventeenth Street, and the Orleans Canal. How many broke? Two out of three. Two out of three failed. That’s like going home with your report card and telling your parents you only passed one out of three classes! And here we are the richest country in the world. Supposedly we have some of the best engineers in the world, but they flunked two out of three tests. That’s not acceptable to New Orleans. That’s not acceptable to Louisiana. That’s not acceptable to the United States of America!
“But that wasn’t the biggest disaster. The Mr. Go Canal charts right up there with the biggest disasters in the world. It’s like the tsunami in Indonesia, the earthquake in Pakistan, Sumatra, and Tangshan China, or the great San Francisco fire. The difference is that it happened in the greatest country in the world, the richest country that can’t afford or refuses to build a proper dam to keep the water out.
