[StBernard] Judge: suit alleging negligence in building of MRGO headed for trial

[Westley Annis]

Judge: suit alleging negligence in building of MRGO headed for trial
by Susan Finch, The Times-Picayune 
Friday March 20, 2009, 11:17 AM
A federal court judge in New Orleans cleared the way this morning for the
Army Corps of Engineers to face trial next month on a lawsuit that claims
the agency thumbed its nose at environmental laws in building and
maintaining the Mississippi River Gulf Outlet. 

The case, which Judge Stanwood Duval has scheduled to hear without a jury
starting April 20, was filed by WDSU-TV news anchorman Norman Robinson and
five other plaintiffs whose homes in eastern New Orleans, the Lower 9th Ward
and St. Bernard Parish were swamped during Hurricane Katrina.

The suit alleges that the corps' negligence destroyed protective wetlands
and turned the shipping channel into a speedway for storm surge that flooded
thousands of homes during the 2005 hurricane. 

In his long-awaited decision, which spans 65 pages, Duval refused pleas by
both sides to decide issues in their favor by issuing what's called "summary
judgment" -- that is, without holding a trial.

Duval said a trial is necessary to hash out several "material questions of
fact," including whether the National Environmental Protection Act was
violated by what the Corps claims were the legally-permissible,
discretionary decisions it made in designing, building and maintaining the
76-mile channel, and whether, as the plaintiffs maintain, the Corps violated
that law's requirement to warn Congress of the dangers presented by the
MRGO.

New Orleans lawyer Jonathan Andry, one of the attorneys handling the case,
said if his clients win their case at trial and the ruling is upheld on
appeal, the case would set the stage for thousands of other people whose
homes in the same areas to seek compensation from the federal government.

Another group of residents from eastern New Orleans, St. Bernard and Lower
9th Ward have a separate lawsuit that asks Duval to let that case proceed as
a class action, representing everyone in those areas who sustained flooding
in the 2005 storm.

"We are pleased to have overcome this final hurdle to securing the first
trial for Katrina victims and to holding the Army Corps accountable," said
California lawyer Pierce O'Donnell, the plaintiffs' lead trial counsel in
the nearly three-year-old case. "Battling the federal government with its
own army of lawyers and unlimited resources has been a daunting ordeal."

The Robinson case and the pending MRGO class action are the only surviving
lawsuits filed on behalf of Katrina flood victims. 

Class action lawsuits filed against insurance companies for flood damage
were dismissed in 2007 by the 5th U.S. Circuit Court of Appeals. Last year,
Duval dismissed on immunity grounds another class action against the Corps
over the failure of the 17th Street and London Avenue drainage canal levees.

Katrina flood damage claims, now numbering 400,000, have been filed by
homeowners, residents, businesses, schools, universities, hospitals,
churches and synagogues, as well as the State of Louisiana, the City of New
Orleans and St. Bernard Parish.

As he has before, O'Donnell today signaled that the plaintiffs' side will
seek help in Washington, D.C. if they win their case at trial and on appeal.

"Before and after his election, President Obama promised that he would make
rebuilding New Orleans a top priority," O'Donnell said. "We are looking to
the White House for leadership in expeditiously resolving the claims of
Katrina victims in a fair and equitable manner. The continued stonewalling
of Katrina victims is a national disgrace."