NEW ORLEANS – The Army Corps of Engineers is back on trial, seven years after Hurricane Katrina's epic storm surge shredded the flood protection system it had built for New Orleans.
Starting Wednesday, a federal judge will hear testimony on claims that excavation work by the corps and one of its contractors caused the failure of floodwalls meant to protect the city's Lower 9th Ward and neighboring St. Bernard Parish.
The corps rejects the plaintiffs' negligence claims, countering that water from Katrina's rain and surge overtopped and overwhelmed floodwalls along the east side of the Inner Harbor Navigation Canal, also known locally as the Industrial Canal.
The trial will be the second to pit New Orleans residents against the corps over damage from flooding in Katrina's aftermath. The storm struck Aug. 29, 2005, leaving about 80 percent of the city under water after levees and floodwalls failed.
The case will be heard without a jury and decided by U.S. District Judge Stanwood Duval Jr., who ruled in 2009 on separate but related claims that the corps' shoddy work on a shipping channel left the same areas vulnerable to flooding.
If Duval rules for the plaintiffs again, the case could evolve into a class-action involving many more claims against the corps.
Joseph Bruno, a lead plaintiffs' attorney for both cases, said more than $1 billion could be at stake if Duval rules against the corps and its contractor, Washington Group International Inc., after the latest trial.
"Everybody knows they screwed up," Bruno said. "The only question is how and whether they have to pay."
In March, the 5th U.S. Circuit Court of Appeals upheld Duval's landmark ruling that the federal government isn't immune from lawsuits blaming Katrina's flood damage on the corps' operation and maintenance of the Mississippi River-Gulf Outlet navigation channel.
The second trial centers on a lock replacement project that began in 1999, when the corps hired WGI to perform excavation and backfilling work near the canal floodwalls.
Plaintiffs' attorneys argue the corps and WGI should have known the work could jeopardize the floodwalls' stability but failed to properly evaluate and protect against their failure.
"It is a basic engineering principle and practice that if you dig holes near a floodwall as substantial as the ones at issue here (and improperly backfill and compact those holes), you need to determine whether your work would harm the floodwall. Neither the Corps nor WGI followed this basic engineering precept," plaintiffs' attorneys wrote in their trial brief.
University of California at Berkeley engineering professor Robert Bea, an expert witness for the plaintiffs, concluded that subterranean water pressures from Katrina's storm surge passed through the holes and a layer of clay with enough force to breach the floodwalls in two places.
Justice Department lawyers representing the corps say Bea is the only proponent of this theory and accused him of performing a "deeply flawed and unscientific analysis."
"At trial it will become apparent that no competent evidence supports the plaintiffs' contention that hydraulic underseepage and uplift pressures caused the breaches," the government lawyers wrote in a court filing.
Instead, the government offers an explanation that is "simpler, more consistent with the facts:" Katrina's overwhelming surge overtopped the floodwalls and caused the breaches. The government denies WGI's work was at fault.
WGI says the corps was solely responsible for ensuring that the excavation and backfilling work wouldn't jeopardize stability of the floodwalls.
"While the evidence at trial will prove that WGI's conduct did not cause the breaches, the relevant inquiry for the purposes of determining whether WGI met the standard of care is not whether the (corps') instructions were correct, but whether WGI acted reasonably in following them," the company's lawyers wrote in their trial brief.
WGI also assailed Bea's conclusions, calling them "divorced from reality and completely unsupportable."
The trial is expected to last about a month.