The impact of Hurricane Katrina continues to be the subject of litigation in South Louisiana. US District Judge Stanwood Duval of the United States District Court in New Orleans recently rendered a notable ruling that addressed a cause of substantial flooding in the city’s Lower Ninth Ward.
By way of background, Hurricane Katrina caused widespread and catastrophic flooding in Southeast Louisiana in August 2005, most notably in Orleans, Plaquemines and St. Bernard Parishes. Much of the flooding resulted from a wind driven tidal wave from the Gulf of Mexico that preceded the onslaught of the storm. However, most of the flooding in New Orleans was not caused by the tidal wave but resulted from a failure of the levee system at various locations throughout the city. The levee failures allowed the waters of Lake Pontchartrain, the Mississippi River and other waterways to pour unrestrained into the low lying areas of the below-sea-level city.
Some of the levee failures occurred on the Industrial Canal which cuts through the city along the western border of the Lower Ninth Ward. As a result of the levee failures, the Industrial Canal flowed into and flooded thousands of homes, causing injuries and deaths and millions of dollars in property damage. During the storm a barge floated out of the Industrial Canal and onto the land area immediately adjoining the location of one of the levee failures. It was alleged by some that the failure was caused by such barge, contending that it had broken its moorings and floated free from a dock on the canal during the height of the storm and that such barge allided with the levee wall, causing the wall to fail.
Nearly a dozen lawsuits representing thousands of class-action type claimants were filed against the barge owner, the dock operator, fleeting and towboat operators. Such lawsuits asserted that the barge should have been better secured or removed from the canal prior to the arrival of the storm. The cornerstone of the suits was the allegation the barge knocked down the levee. Eventually all claims relating to the barge were resolved with the exception of the claims directed to the dock owner which remained to be tried.
The first of the claims were tried as a non-jury “exemplar” trial in 2010 in which plaintiff counsel presented certain claims representing different categories of damages, i.e., homeowner, business owner, personal injury. Judge Duval tried the selected representative claims on both liability and damages. (Thousands of claims were held in reserve for future jury trials. He ruled in favor of the dock owner following the trial.) Prior to the exemplar trial, Judge Duval advised the parties that his findings would not be deemed res judicata and therefore nonbinding with respect to the remaining claims.
After a lengthy non-jury trial, Judge Duval ruled in favor of the dock owner. He held that it would have been physically impossible for the barge to have caused the failure levee under the prevailing weather/wind conditions. He concluded that the failure was caused by other forces. Thus, even if the dock owner had negligently moored the barge and was legally responsible for its breaking loose during the storm, the dock owner could not be held responsible for the levee failure. He therefore rendered a judgment in favor of dock owner.
The recent ruling involves what happened next –
Although victorious at the initial trial, the dock owner still faced the prospect of numerous jury trials on the remaining claims that were not presented at the exemplar trial.
Having been unsuccessful in presenting its case in the non-jury trial before Judge Duval, plaintiff counsel hoped to achieve a different result in the jury trials that were to follow. Counsel planned to use a different trial strategy and approach to the presentation of evidence to the jury.
In order the head off the possibility of an adverse jury verdict in upcoming trials, the dock owner filed a preemptive motion for summary judgment. In so doing, the dock owner cited much of the persuasive evidence that was presented at the 2010 trial. Over the strenuous objections of the claimants, Judge Duval relied on much of the trial testimony that was presented to him at the earlier trial. The claimant attorneys argued that the court was obligated to consider de novo all evidence that was to be presented at the upcoming jury trials without regard to the evidence presented at the earlier trial.
In a very well written opinion, Judge Duval did not apply res judicata in addressing the summary judgment motion. However, he deemed the previous trial testimony to be the equivalent of an affidavit that would be relevant for purposes of summary judgment – even if such testimony would not be equally admissible at a subsequent trial. On that basis, Judge Duval found the previous testimony to be supportive of the dock owner’s position and granted summary judgment.
An appeal to the US Fifth Circuit is expected.
In re Katrina Canal Breaches, No. 05-1482 (E.D. La. Mar. 20, 2012).