In the United States Court of Federal Claims
No. 05-1119 L
Filed: May 1, 2015
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*
*
ST. BERNARD PARISH GOVERNMENT *
AND OTHER OWNERS OF REAL *
PROPERTY IN ST. BERNARD PARISH *
OR THE LOWER NINTH WARD OF THE *
CITY OF NEW ORLEANS, *
* Federal Rules of Evidence;
Plaintiffs, * Rule of the United States Court of
* Federal Claims (“RCFC”) 26
v. * (General provisions governing
* discovery).
THE UNITED STATES, *
*
Defendant. *
*
*
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MEMORANDUM OPINION AND FINAL ORDER ON EVIDENTIARY ISSUES
From December 12, 2011 to December 15, 2011, the court convened a trial in New Orleans,
Louisiana. 12/12/11–12/15/11 TR 1–1236. The exhibits identified in this Order were introduced
and comprise the record as to liability. The court’s rulings regarding evidentiary issues are
discussed herein.
I. DOCUMENTS PROFFERED BY THE PARTIES WITHOUT OBJECTION THAT
THE COURT RULES ARE ADMITTED INTO EVIDENCE.
A. Plaintiffs’ Trial Exhibits.1
1. Plaintiffs’ SPX Exhibits.
SPX.0004 SPX.0008 SPX.0138 SPX.0161 SPX.0163 SPX.0406 SPX.0479
SPX.0487 SPX.0492 SPX.0501 SPX.0535 SPX.0541 SPX.0544 SPX.0545
SPX.0546 SPX.0549 SPX.0625 SPX.0626 SPX.0627 SPX.0628 SPX.0629
SPX.0631 SPX.0632 SPX.0633 SPX.0634 SPX.0635 SPX.0636 SPX.0637
SPX.0638 SPX.0639 SPX.0640 SPX.0641 SPX.0642 SPX.0643 SPX.0644
SPX.0645 SPX.0646 SPX.0647 SPX.0648 SPX.0649 SPX.0650 SPX.0651
SPX.0652 SPX.0653 SPX.0654 SPX.0655 SPX.0656 SPX.0657 SPX.0658
SPX.0659 SPX.0660 SPX.0661 SPX.0662 SPX.0663 SPX.0664 SPX.0665
SPX.0666 SPX.0667 SPX.0668 SPX.0669 SPX.0670 SPX.0671 SPX.0672
SPX.0673 SPX.0674 SPX.0675 SPX.0676 SPX.0677 SPX.0678 SPX.0679
SPX.0680 SPX.0681 SPX.0682 SPX.0683 SPX.0700 SPX.0701 SPX.0702
SPX.0704 SPX.0705 SPX.0706 SPX.0707 SPX.0708 SPX.0709 SPX.0710
SPX.0711 SPX.0712 SPX.0713 SPX.0714 SPX.0717 SPX.0718 SPX.0738
SPX.0740 SPX.0885 SPX.0893 SPX.0894 SPX.0895 SPX.0901 SPX.0905
SPX.0908 SPX.0909 SPX.0910 SPX.0911 SPX.0912 SPX.0913 SPX.0914
SPX.0915 SPX.0916 SPX.0917 SPX.0918 SPX.0919 SPX.0920 SPX.0921
SPX.0922 SPX.0923 SPX.0924 SPX.0925 SPX.0926 SPX.0927 SPX.0928
SPX.0929 SPX.0930 SPX.0931 SPX.0932 SPX.0933 SPX.0934 SPX.0935
SPX.0936 SPX.0937 SPX.0938 SPX.0939 SPX.0940 SPX.0941 SPX.0942
SPX.0943 SPX.0944 SPX.0945 SPX.0946 SPX.0947 SPX.0948 SPX.0949
SPX.0950 SPX.0951 SPX.0952 SPX.0953 SPX.0954 SPX.0955 SPX.0956
SPX.0957 SPX.0958 SPX.0959 SPX.0960 SPX.0961 SPX.0962 SPX.0963
SPX.0964 SPX.0965 SPX.0966 SPX.0967 SPX.0968 SPX.0969 SPX.0970
SPX.0971 SPX.0972 SPX.0973 SPX.0974 SPX.0975 SPX.0976 SPX.0977
SPX.0978 SPX.0979 SPX.0980 SPX.0981 SPX.0982 SPX.0983 SPX.0984
SPX.0985 SPX.0986 SPX.0987 SPX.0988 SPX.0989 SPX.0990 SPX.0991
SPX.0992 SPX.0993 SPX.0994 SPX.0995 SPX.0996 SPX.0997 SPX.0998
SPX.0999 SPX.01000 SPX.01001 SPX.01002 SPX.01003 SPX.01004 SPX.01005
SPX.01006 SPX.01007 SPX.01008 SPX.01009 SPX.01010 SPX.01011 SPX.01012
SPX.01013 SPX.01014 SPX.01015 SPX.01016 SPX.01017 SPX.01018 SPX.01019
SPX.01020 SPX.01021 SPX.01022 SPX.01023 SPX.01024 SPX.01025 SPX.01026
SPX.01027 SPX.01028 SPX.01029 SPX.01030 SPX.01031 SPX.01032 SPX.01033
SPX.01034 SPX.01035 SPX.01036 SPX.01037 SPX.01038 SPX.01039 SPX.01040
SPX.01053 SPX.01154 SPX.01156 DX-41 DX-53 DX-88 DX-138
DX-193 DX-202 DX-211
1
As discussed in the parties’ March 23, 2012 Joint Submission Of Exhibits Offered Into
Evidence (Dkt. No. 178) (“Joint Submission”), Plaintiffs have offered into evidence “SPX”
exhibits appearing on Plaintiffs’ pretrial exhibit list in this case, together with three categories of
exhibits that were admitted in Robinson v. United States, Case No. 06-CV-2268 (E.D. La.)
(“Robinson”): Plaintiff (“PX”) exhibits; Defendant (“DX”) exhibits; and Joint (“JX”) exhibits. In
its May 1, 2015, Memorandum Opinion And Order, the court indicates Robinson exhibits with the
letter “R,” i.e., “RPX,” “RDX,” and “RJX.”
2
2. Robinson Exhibits.
DX-0001; DX-1104; JX-0195.
B. The Government’s Trial Exhibits.
1. The Government’s DX Exhibits.
DX-1 DX-49 DX-53 DX-78 DX-79 DX-80 DX-81
DX-86 DX-88 DX-91 DX-105 DX-111 DX-115 DX-133
DX-138 DX-174 DX-174(a) DX-193 DX-195 DX-199 DX-202
DX-208 DX-210 DX-211 DX-212 DX-213 DX-214 DX-215
DX-216 DX-217
2. Robinson Exhibits.
DX-1; DX-1104; JX-195.
C. Plaintiffs’ Written Direct Testimony.
Dkt. No. 158 (Suhayda); Dkt. No. 159 (Kemp).
D. The Government’s Written Direct Testimony.
Dkt. No. 160 (Britsch); Dkt. No. 161 (Resio).
E. Plaintiffs’ Deposition Designations.2
Nancy Powell January 30, 2008 deposition: 1; 6–15; 17–26; 28–30;
42–43; 50–53; 63–74; 79–84; 106–07;
February 8, 2011 deposition: 1; 9–20; 25–37; 41–47;
55–66; 84–99; 106–09; 112–15; 123–37.
Greg Miller 1; 8–15; 23–35; 45–46; 55–63; 65–76; 78–81; 85–
87; 107–08.
Michael Park 1–11; 36–48; 77–79.
2
On October 28, 2011, Plaintiffs filed a Motion To Designate Deposition Transcript. Dkt.
No. 134. On November 4, 2011, the Government filed a Motion To Designate Deposition
Testimony. Dkt. No. 140. On November 14, 2011, the Government opposed Plaintiffs’ Motion
To Designate Deposition Testimony, and submitted cross-designations to the extent the court
granted Plaintiffs’ Motion. Dkt. No. 145. On November 21, 2011, Plaintiffs filed a Response to
the Government’s November 4, 2011 Motion. Dkt. No. 149. On November 23, 2011, Plaintiffs
filed a Reply. Dkt. No. 153. On December 2, 2011, the court admitted the initial deposition
designations. 12/2/11 Minute Orders (admitting Dkt. 134, 140).
3
Donald Resio 1; 5–15; 18–27; 29–31; 34–39; 47–56; 64–74; 84–
87; 89–118; 125–31; 134–36.
Jerry Foster 1; 8–22; 25–31; 37–38; 45–49; 51–52; 58–60; 63–
73; 75–80; 92–103; 110–23; 130–35; 141–58; 165–
67; 175–79; 185–86; 199–200; 210; 221–25; 228–
30; 234–41; 246–49.
Michelle Daigle 1; 6–13; 58–59; 78–83; 86–87; 107–08; 110–13;
135–37; 141–42.
Christopher Gilmore 1; 5–6; 9–12.
Steve Patorno 1–7; 9–20; 26.
Linda Mathies 1; 7–11; 15–21; 43–50; 55–67; 75–82; 98–99.
Sue Hawes 1; 4–9; 21–22; 33–41; 44–45.
Keith O’Cain 1; 9–13; 16–17; 28–30; 32–33; 36; 56; 73–78; 81–
86; 88–90; 92–93; 106–22.
Rick Broussard 1; 6–8; 26–30; 38; 42–43.
Gary Zimmerer 1; 7–25; 27–40; 45–48; 50–59; 67–68; 81–82; 88–
89; 101–04; 107–08; 117–25; 128–29; 139–52; 156–
61.
Tommoso “Tommy” G. Tommaseo October 18, 2010 deposition: 22:2–20; 27:19–28:11;
36:7–18; 54:20–55:15; 61:4–8; 71:16–25; 81:11–
82:4; 90:19–91:6; 99:14–23; 109:4–11; 131:24–
132:13; 157:15–19; 173:15–174:20.
Steven and Cynthia Bordelon October 14, 2010 deposition: 17:8–15; 18:5–19:1.
Edward John Robin, Jr. October 13, 2010 deposition: 18:17–19:12; 21:17–
22; 26:21–27:15.
Rod W. Willhoft October 20, 2010 deposition: 24:21–25:9; 36:9–
36:24; 43:24–44:2.
Gwendolyn and Henry Adams October 15, 2010 deposition: 18:9–19:1.
Craig P. Tafaro, Jr. January 13, 2011 deposition: 24:18–25:5; 26:4–24;
40:12–41:21; 78:18–79:2; 98:2–15; 103:1–4; 114:4–
115:25; 122:19–22.
Michelle Walsh January 13, 2011 deposition: 46:16–20.
4
Mylinda Gettys January 12, 2011 deposition: 22:21–23:9; 30:9–24;
31:11–13; 45:22–46:15; 50:24–51:17; 56:11–19.
F. The Government’s Deposition Designations.
Tommoso “Tommy” G. Tommaseo October 18, 2010 deposition: 1; 5:13–8:3; 10:18–
11:5; 14:13–16:4; 19:17–20:13; 20:22–21:22; 24:6–
10; 26:22–27:9; 32:2–9; 34:15–36:6; 38:1–9; 38:19–
39:3; 39:13–21; 42:5–45:19; 69:25–71:15; 78:23–
79:2; 79:25–81:10; 88:6–90:18; 97:1–99:13; 104:2–
106:19; 117:12–124:25; 126:1–13; 129:3–12;
130:7–24; 133:12–16; 135:13–24; 139:6–144:9;
153:18–157:14.
Steven John Bordelon October 14, 2010 deposition: 1; 8:1–9:11; 13:12–
14:8; 14:20–24; 16:1–17:7; 20:16–22:10; 24:25–
25:9; 26:4–14; 30:4–9; 30:16–20; 31:15–32:4; 32:9–
21; 37:2–7.
Brad Lee Robin October 13, 2010 deposition: 1; 7:5–9; 11:17–22;
13:2–4; 14:19–15:23; 24:13–15; 33:1–17; 34:6–20;
37:5–39:9; 40:24–41:18; 45:18–46:21; 48:2–49:12;
56:15–58:24; 65:2–7; 65:14–68:23; 71:15–72:3;
75:11–23; 80:7–25; 82:2–8; 89:12–25; 93:4–10;
95:11–16; 97:12–98:24; 99:17–100:4; 101:11–14;
119:1–12.
Edward John Robin, Jr. October 13, 2010 deposition: 1; 6:5–8; 16:3–8;
21:25–24; 23:22–24:19; 25:7–27:15; 28:16–18;
33:9–10; 35:1–4.
Rod Wilhoft October 10, 2010 deposition: 1; 5:19–24; 7:24–8:1;
8:18–22; 9:1–11:8; 17:19–18:15; 20:6–25; 22:1–11;
23:6–16; 28:3–11; 29:2–30:23; 32:9–13; 34:5–24;
42:22–43:8; 44:11–17; 45:14–46:1; 48:5–14.
Gwendolyn and Henry Adams October 15, 2010 deposition: 1; 5:9–15; 6:8–13; 7:8–
22; 8:18–9:4; 12:21–13:18; 15:19–16:8; 19:2–20:13;
27:23–28:16; 38:20–39:7.
Craig Taffaro January 13, 2011 deposition: 1; 19:7–9; 41:22–
42:13; 45:18–47:19; 48:9–49:13; 51:24–53:20;
66:16–67:3; 69:2–15; 71:14–17; 73:10–14; 83:20–
24; 93:12–95:23; 96:21–98:1; 99:11–101:11; 122:6–
18.
5
Michelle Walsh January 12, 2011 deposition: 1; 22:8–23:8; 38:19–
40:21; 49:2–19; 52:2–17; 56:7–65:21.
Mylinda Gettys January 12, 2011 deposition: 1; 8:13–9:13; 32:14–
17; 34:20–35:13.
Nancy Powell January 30, 2008 deposition: 39:20–41:1; 45:10–22;
February 8, 2011 deposition: 49–52.
Greg Miller 37–40; 89:1–90:5.
Michael Park 13:1–23; 29:1–34; 58:16–61:14.
Donald Resio 138–161:1–6.
Jerry Foster 202–05; 214–17.
Sue Hawes 23–32; 42–43; 46–52.
Keith O’Cain 21–24.
Gary Zimmerer 60–66; 76:15–78:21; 90–91:16; 98:16–99.
G. The Court’s Resolution.
The court rules that the documents referenced herein, at Section I, are admitted into
evidence. See Court Exhibit A § I.
II. DOCUMENTS PROFFERED BY PLAINTIFFS, TO WHICH THE
GOVERNMENT OBJECTS.3
A. Plaintiffs’ Trial Exhibits.
1. Plaintiffs’ SPX Exhibits.
a. Interagency Performance Evaluation Task Force, Independent
Levee Investigations Team, And Team Louisiana Exhibits.
Plaintiffs proffered twenty-nine exhibits, consisting of reports and associated documents
prepared by the Interagency Performance Evaluation Task Force (“IPET”), the Independent Levee
Investigations Team (“ILIT”), and Team Louisiana. Dkt. No. 178-1, at 1–3. The Government
3
The Government objects to the admission of each of the documents listed in this section,
“renew[ing] all evidentiary objections asserted at trial” and “object[ing] that each exhibit not used
at trial lacks foundation to be admitted into the record.” Dkt. No. 178-1, at 1 n.1.
6
objects to twenty-five4 of these exhibits in their entirety on relevance and hearsay grounds. Dkt.
No. 178-1, at 1–3. The Government also objects to the admission of two exhibits as whole
documents, but does not object to the admission of portions actually discussed with the witness.
Dkt. No. 178-1, at 1–2 (objecting to SPX.0010 and SPX.0023).5
As to relevance, the IPET, ILET, and Team Louisiana exhibits are reports that discuss why
the Southeast Louisiana’s Hurricane Protection System (“HPS”) failed. See, e.g., SPX.0001, at I-
1; SPX.0027, at PDF 2, xix; SPX.0029, at i. The court rules that these exhibits are relevant,
because they “ha[ve] a tendency to make a fact more or less probable” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401; see also FED. R. EVID. 402 (stating
that “relevant evidence is admissible”).6
As to hearsay,7 these exhibits are evaluations of the HPS by groups commissioned by the
Army Corps. See, e.g., SPX.0001, at I-1 (“ITEP was established by the Chief of [the Army Corps
of] Engineers [“Army Corps”] to determine the facts concerning the performance of the HPS in
New Orleans and Southeast Louisiana during Hurricane Katrina.”); SPX.0027, at PDF 2, xix (The
ILIT was funded by grants from the National Science Foundation, and the ILIT “report presents
the results of an investigation of the performance of the New Orleans regional flood protection
system during Hurricane Katrina[.]”); SPX.0029, at i (Team Louisiana was “commissioned . . . by
the Louisiana Department of Transportation and Development . . . to assemble a team of Louisiana-
based academic and private sector experts to collect forensic data related to the failure of the levee
systems around greater New Orleans that occurred during . . . Hurricane Katrina[.]”) (internal
quotation marks omitted). For these reasons, the court rules that these twenty-five exhibits are
4
The twenty-five exhibits consist of twenty-two IPET exhibits, two ILIT exhibits, and one
Team Louisiana exhibit. The twenty-two IPET exhibits are: SPX.0001; SPX.0002; SPX.0003;
SPX.0005; SPX.0006; SPX.0007; SPX.0009; SPX.0011; SPX.0012; SPX.0013; SPX.0014;
SPX.0015; SPX.0016; SPX.0017; SPX.0018; SPX.0019; SPX.0020; SPX.0021; SPX.0022;
SPX.0024; SPX.0025; SPX.0026. The two ILIT exhibits are: SPX.0027; SPX.0028. The Team
Louisiana exhibit is: SPX.0029. Of these twenty-five exhibits, seven were admitted in their
entirety in Robinson and five were admitted, in part, in Robinson. See Dkt. No. 178-1, at 1 n.2.
5
Of these two exhibits, one was admitted in full in Robinson.
6
Federal Rule of Evidence 401 provides that “[e]vidence is relevant if: (a) it has a tendency
to make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” FED. R. EVID. 401; see also FED. R. EVID. 402 (stating
that “relevant evidence is admissible unless any of the following provides otherwise: the United
States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.”).
7
Although it would be impracticable to conduct an extensive multi-factor analysis of the
hearsay exclusions and exceptions potentially applicable to every exhibit to which the Government
objects on hearsay grounds, the court has carefully considered Federal Rules of Evidence 801, 803,
and 804.
7
public records and business records, and therefore are exempt from hearsay. See FED. R. EVID.
803(8)8; FED. R. EVID. 803(6).9
For these reasons, the court rules that the IPET, ILIT, and Team Louisiana reports and
associated documents are admitted. See Court Exhibit A § II.A.1.a.
b. United States Army Corps Of Engineers Exhibits.
Plaintiffs proffered 217 exhibits, consisting of reports, studies, design memoranda, emails,
reconnaissance reports, and Flood Safety Program documents from the Army Corps. Dkt. No.
178-1, at 3–19. The Government objects to the admission of 212 of these exhibits in their entirety10
8
Federal Rule of Evidence 803(8) provides for excepting from the hearsay prohibition “[a]
record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter
observed while under a legal duty to report . . . ; or (iii) . . . factual findings from a legally
authorized investigation; and (B) the opponent does not show that the source of the information or
other circumstances indicate a lack of trustworthiness.” FED. R. EVID. 803(8).
9
Federal Rule of Evidence 803(6) excepts from the hearsay prohibition:
[a] record of an act, event, condition, opinion, or diagnosis if: (A) the record was
made at or near the time by—or from information transmitted by—someone with
knowledge; (B) the record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity; (D) all these conditions
are shown by the testimony of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or with a statute permitting
certification; and (E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of trustworthiness.
FED. R. EVID. 803(6).
10
The 212 Army Corps exhibits are: SPX.0100; SPX.0101; SPX.0102; SPX.0103;
SPX.0104; SPX.0105; SPX.0107; SPX.0108; SPX.0113; SPX.0117; SPX.0118; SPX.0119;
SPX.0123; SPX.0127; SPX.0128; SPX.0129; SPX.0130; SPX.0131; SPX.0132; SPX.0133;
SPX.0134; SPX.0135; SPX.0136; SPX.0137; SPX.0140; SPX.0141; SPX.0142; SPX.0143;
SPX.0144; SPX.0145; SPX.0146; SPX.0147; SPX.0148; SPX.0151; SPX.0152; SPX.0155;
SPX.0156; SPX.0157; SPX.0158; SPX.0159; SPX.0160; SPX.0162; SPX.0164; SPX.0166;
SPX.0167; SPX.0168; SPX.0170; SPX.0172; SPX.0173; SPX.0174; SPX.0175; SPX.0176;
SPX.0178; SPX.0180; SPX.0184; SPX.0185; SPX.0186; SPX.0187; SPX.0188; SPX.0189;
SPX.0190; SPX.0191; SPX.0192; SPX.0193; SPX.0194; SPX.0195; SPX.0196; SPX.0197;
SPX.0198; SPX.0199; SPX.0200; SPX.0201; SPX.0202; SPX.0203; SPX.0204; SPX.0205;
SPX.0206; SPX.0207; SPX.0208; SPX.0209; SPX.0210; SPX.0211; SPX.0212; SPX.0213;
SPX.0214; SPX.0215; SPX.0216; SPX.0217; SPX.0218; SPX.0219; SPX.0220; SPX.0222;
SPX.0223; SPX.0224; SPX.0225; SPX.0226; SPX.0229; SPX.0230; SPX.0231; SPX.0232;
SPX.0233; SPX.0234; SPX.0236; SPX.0237; SPX.0238; SPX.0239; SPX.0241; SPX.0242;
SPX.0243; SPX.0244; SPX.0246; SPX.0247; SPX.0248; SPX.0249; SPX.0250; SPX.0251;
SPX.0252; SPX.0253; SPX.0254; SPX.0255; SPX.0256; SPX.0257; SPX.0258; SPX.0259;
8
and to portions of SPX.0169. Dkt. No. 178-1, at 3–19; see also Dkt. No. 178-1, at 7 (objecting to
SPX.0169). The Government objects to these exhibits on the grounds of: relevance;
cumulativeness; hearsay; waiver; and/or objection sustained at trial. The court addresses each of
these categories.
The Government objects to 202 of these exhibits on relevance grounds. Dkt. No. 178-1, at
3–19. These exhibits include reports and studies, either conducted by the Army Corps or
commissioned by the Army Corps, and Army Corps’ design memoranda, emails, Flood Safety
Program documents, and other similar exhibits. Dkt. No. 178-1, at 3–19. In addition, the exhibits
discuss the Mississippi River-Gulf Outlet channel (“MR-GO”), the ecosystem of Southeast
Louisiana, flood protection systems, and the effects of the flooding events. Dkt. No. 178-1, at 3–
19. Therefore, the court rules that these exhibits are relevant, because they “ha[ve] a tendency to
make a fact more or less probable” and “the fact is of consequence in determining the action.”
FED. R. EVID. 401; see also FED. R. EVID. 402 (stating that “relevant evidence is admissible”).
The Government objects to 172 of these exhibits on the grounds that they are cumulative.
Dkt. No. 178-1, at 3–19. Although Federal Rule of Evidence 403 grants the court discretion to
exclude evidence for efficiency, it does not require the exclusion of otherwise relevant evidence.11
Therefore, the court rules that the “probative value” of these exhibits is not “substantially
outweighed by [the] danger of . . . needlessly presenting cumulative evidence.” FED. R. EVID. 403.
The Government objects to thirty-nine of these exhibits on hearsay grounds. Dkt. No. 178-
1, at 5–7, 16–17. Twenty-nine of these objections relate to Army Corps’ emails that discuss MR-
GO, the Southeast Louisiana ecosystem, Hurricane Katrina related litigation, and other relevant
topics. Dkt. No. 178-1, at 16–17. The court rules that these emails are admissible under the
opposing party’s statement exclusion and under the business records exception to the hearsay
SPX.0260; SPX.0263; SPX.0266; SPX.0267; SPX.0268; SPX.0269; SPX.0272; SPX.0276;
SPX.0277; SPX.0278; SPX.0280; SPX.0281; SPX.0282; SPX.0283; SPX.0284; SPX.0285;
SPX.0286; SPX.0287; SPX.0289; SPX.0290; SPX.0291; SPX.0292; SPX.0293; SPX.0294;
SPX.0295; SPX.0296; SPX.0297; SPX.0298; SPX.0303; SPX.0305; SPX.0308; SPX.0309;
SPX.0310; SPX.0312; SPX.0315; SPX.0316; SPX.0319; SPX.0324; SPX.0326; SPX.0329;
SPX.0331; SPX.0333; SPX.0334; SPX.0335; SPX.0337; SPX.0338; SPX.0342; SPX.0344;
SPX.0346; SPX.0347; SPX.0349; SPX.0351; SPX.0352; SPX.0353; SPX.0354; SPX.0355;
SPX.0356; SPX.0357; SPX.0359; SPX.0360; SPX.0361; SPX.0362; SPX.0363; SPX.0364;
SPX.0365; SPX.0366; SPX.0367; SPX.0368; SPX.0372; SPX.0373; SPX.0374; SPX.0383;
SPX.0384; SPX.0392; SPX.0393; SPX.0394; SPX.0395; SPX.0396; SPX.0397; SPX.0398;
SPX.0399; SPX.0400; SPX.0401; SPX.0402; SPX.0403; SPX.0405; SPX.0407; SPX.0408.
Of these 212 exhibits, thirty-two were admitted in their entirety in Robinson and four were
admitted, in part, in Robinson. Dkt. No. 178-1, at 3–8, 10–14, 18. SPX.0169 was admitted in its
entirety in Robinson. Dkt. No. 178-1, at 7.
11
Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of . . . needlessly presenting
cumulative evidence.” FED. R. EVID. 403 (emphasis added).
9
prohibition. See FED. R. EVID. 801(d) (opposing party’s statement exclusion)12; FED. R. EVID.
803(6) (business records exception).
The other ten hearsay objections relate to the Army Corps’ reports and studies. Dkt. No.
178-1, at 5–7. The court rules that these studies are admissible under the public records exception,
the business records exception, and the opposing party’s statement exclusion to the hearsay
prohibition. See FED. R. EVID. 803(8) (public records exception); FED. R. EVID. 803(6) (business
records exception); FED. R. EVID. 801(d) (opposing party’s statement exclusion).
The Government objects to SPX.0134, because its objection to this exhibit was sustained
at trial. Dkt. No. 178-1, at 5; 12/13/11 TR at 524–25 (Kemp Redirect). The court rules that
SPX.0134 is not admissible.
Finally, the Government renewed its objections to SPX.0226, SPX.0255, and SPX.0256
that were raised at trial. Dkt. No. 178-1, at 11, 13; see also 12/13/11 TR at 509–11 (Kemp
Redirect) (objecting on the grounds that the documents were not discussed during cross-
examination). The court denied the Government’s objection. 12/13/11 TR at 510, 513 (statement
by the court that the scope of Plaintiffs’ questions was “fair” and that “we’ve touched upon this in
the cross-examination”). Therefore, the court rules that SPX.0226, SPX.0255, and SPX.0256 are
admissible.
For these reasons, the court rules that the Army Corps exhibits are admitted. See Court
Exhibit A § II.A.1.b.13
c. Federal Emergency Management Agency Documents And
Related Materials.
Plaintiffs proffered fifty-nine Federal Emergency Management Agency (“FEMA”)
documents and related materials and one United States Geological Survey (“USGS”) document,
12
Federal Rule of Evidence 801(d) provides:
A statement . . . is not hearsay . . . . (2) [if it] is offered against an opposing party
and: (A) was made by the party in an individual or representative capacity; (B) is
one the party manifested that it adopted or believed to be true; (C) was made by a
person whom the party authorized to make a statement on the subject; (D) was made
by the party’s agent or employee on a matter within the scope of that relationship
and while it existed; or (E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
FED. R. EVID. 801(d) (emphasis added).
13
The court also rules that SPX.0169 is admitted, as relevant evidence and as evidence
admitted in Robinson. See FED. R. EVID. 402; see also Dkt. No. 178-1, at 7.
10
to which the Government objects on the grounds of relevance and cumulativeness. Dkt. No. 178-
1, at 19–22.14
The fifty-nine FEMA and one USGS exhibits to which the Government objects include
flood response and insurance information, maps of the affected area, and wetlands valuation
information. Dkt. No. 178-1, at 19–22. Therefore, the court rules that these exhibits are relevant,
because they “ha[ve] a tendency to make a fact more or less probable,” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401; see also FED. R. EVID. 402 (stating
that “relevant evidence is admissible”). The court also rules that the “probative value” of these
exhibits is not “substantially outweighed by [the] danger of . . . needlessly presenting cumulative
evidence.” FED. R. EVID. 403.
For these reasons, the court rules that the FEMA and USGS exhibits are admitted. See
Court Exhibit A § II.A.1.c.
d. Robinson Expert Reports.
Plaintiffs proffered seventeen expert reports from Robinson. Dkt. No. 178-1, at 22–25.
The Government objects to fifteen of these exhibits, all on hearsay grounds, and to two under
RCFC 26. Dkt. No. 178-1, at 22–25.15 The court will address these exhibits in Section II.A.2
below.
e. Plaintiffs’ Expert Declarations, Reports, And Materials Cited.
Plaintiffs proffered thirty-four expert declarations, reports, and materials cited. Dkt. No.
178-1, at 26–29. The Government objects to thirty-two16 of these exhibits on the following
14
The fifty-nine FEMA documents and related materials are: SPX.0409; SPX.0410;
SPX.0411; SPX.0412; SPX.0413; SPX.0414; SPX.0415; SPX.0416; SPX.0418; SPX.0419;
SPX.0420; SPX.0421; SPX.0422; SPX.0423; SPX.0424; SPX.0425; SPX.0426; SPX.0427;
SPX.0428; SPX.0429; SPX.0430; SPX.0431; SPX.0432; SPX.0433; SPX.0434; SPX.0435;
SPX.0436; SPX.0437; SPX.0438; SPX.0439; SPX.0440; SPX.0441; SPX.0442; SPX.0443;
SPX.0444; SPX.0445; SPX.0446; SPX.0447; SPX.0448; SPX.0449; SPX.0450; SPX.0451;
SPX.0452; SPX.0453; SPX.0454; SPX.0455; SPX.0456; SPX.0457; SPX.0458; SPX.0459;
SPX.0460; SPX.0461; SPX.0462; SPX.0463; SPX.0464; SPX.0465; SPX.0466; SPX.0467;
SPX.0469. The USGS document is SPX.0470. SPX.0415 was admitted in its entirety in Robinson.
15
The fifteen Robinson expert reports are: SPX.0471; SPX.0472; SPX.0473; SPX.0474;
SPX.0475; SPX.0476; SPX.0478; SPX.0480; SPX.0482; SPX.0483; SPX.0484; SPX.0485;
SPX.0486; SPX.0488; SPX.0489. For SPX.0483 and SPX.0484, the Government objects on both
hearsay and RCFC 26 grounds. Ten of the documents were admitted in their entirety in Robinson,
and two were admitted, in part.
16
The thirty-two expert declarations, reports, and materials cited are: SPX.0491;
SPX.0494; SPX.0495; SPX.0496; SPX.0497; SPX.0499; SPX.0500; SPX.0502; SPX.0503;
SPX.0504; SPX.0505; SPX.0506; SPX.0507; SPX.0508; SPX.0509; SPX.0510; SPX.0511;
SPX.0512; SPX.0513; SPX.0515; SPX.0517; SPX.0518; SPX.0519; SPX.0520; SPX.0521;
11
grounds: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); hearsay; and RCFC
26.
The Government objects to five of these exhibits under Daubert. In Daubert, the United
States Supreme Court abolished the “general acceptance” precondition to the admissibility of
scientific evidence. See 509 U.S. at 597 (“To summarize: ‘General Acceptance’ is not a necessary
precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but
the Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that
an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.
Pertinent evidence based on scientifically valid principles will satisfy those demands.”); see also
id. at 593–94 (identifying four nonexclusive factors for the court to consider: (1) “whether it can
be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review
and publication”; (3) “the known or potential rate of error”; and (4) the general acceptance in the
scientific community). Daubert and its progeny prompted a revision of Federal Rule of Evidence
702. See FED. R. EVID. 702 Advisory Committee notes (2000) (“Rule 702 has been amended in
response to Daubert . . . and to many cases applying Daubert[.]”); see also FED. R. EVID. 702.17
These five exhibits include: the August 16, 2006 Sworn Declaration of Dr. G. Paul Kemp18;
the August 12, 2011 Expert Report of Dr. Kemp; a MR-GO chronology prepared by Dr. Kemp;
the July 1, 2011 Sworn Declaration of Dr. Joseph N. Suhayda19; and the August 12, 2011 Expert
SPX.0522; SPX.0523; SPX.0524; SPX.0525; SPX.0526; SPX.0527; SPX.0528. Six of these
exhibits were admitted as evidence in Robinson.
17
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.
FED. R. EVID. 702.
18
Dr. George Paul Kemp is a geologist and oceanographer, and is Vice President of the
National Audubon Society and Director of the Louisiana Gulf Coast Initiative. He obtained his
B.S. in Natural Resources from Cornell University, and his M.S. and Ph.D in Marine Sciences
from Louisiana State University. See 12/6/11 Kemp Direct at 5–19.
19
Dr. Joseph N. Suhayda is a Coastal Hydrologist and Coastal Oceanographer with an
advanced degree in Physical Oceanography. He obtained his B.S. in Physics from California State
University, Northbridge, and a Ph.D in Physical Oceanography from the University of California,
San Diego, Scripps Institution of Oceanography. See 12/6/11 Suhayda Direct at 4–6.
12
Report of Dr. Suhayda. Dkt. No. 178-1, at 26.20 Drs. Kemp and Suhayda have extensive
educational qualifications and professional experience in relevant fields. 12/12/11 TR at 188–200
(explaining Dr. Kemp’s educational and professional qualifications, experience in post-Hurricane
Katrina investigations, and his prior testimony in Robinson); 12/13/11 TR at 657–66 (explaining
Dr. Suhayda’s educational and professional qualifications, experience in post-Hurricane Katrina
investigations, and his prior testimony in other hurricane litigation). Therefore, the court rules that
Drs. Kemp and Suhayda are qualified as expert witnesses under Daubert and that their testimony:
“will help the trier of fact to understand the evidence”; “is based on sufficient facts or data”; “is
the product of reliable principles and methods”; and “the expert has reliably applied the principles
and methods to the facts[.]” FED. R. EVID. 702.
The Government also objects to thirty-two of these documents on hearsay grounds. Dkt.
No. 178-1, at 26–29. The six exhibits that are Drs. Suhayda’s and Kemp’s sworn declarations,
expert reports, and an appendix are inadmissible hearsay. See FED. R. EVID. 801(c)21; FED. R.
EVID. 802.22 The remaining twenty-eight exhibits are reports on the hydrology and weather
patterns of the New Orleans area that Plaintiffs’ experts were “made aware of or personally
observed” and that “experts in the particular field would reasonably rely on . . . in forming an
opinion on the subject.” FED. R. EVID. 703 (stating that evidence meeting the aforementioned
criteria “need not be admissible for the opinion to be admitted” into expert testimony). And, the
court rules that these twenty-eight reports satisfy the public records and business records
exceptions to the hearsay prohibition. See FED. R. EVID. 803(8) (public records exception); FED.
R. EVID. 803(6) (business records exception).
Because the court already ruled above that Drs. Suhayda’s and Kemp’s six expert reports,
sworn declarations, and appendix are inadmissible hearsay, the court need not consider the
Government’s RCFC 26 objections.
For these reasons, the court rules that twenty-six of the Plaintiffs’ expert declarations,
reports, and materials cited exhibits to which the Government objects are admitted, but six of these
exhibits are not. See Court Exhibit A § II.A.1.e; Court Exhibit B § II.A.1.e.
20
On November 23, 2011, the Government filed separate Motions In Limine to exclude the
testimony of Drs. Kemp and Suhayda that the court denied on December 2, 2011. At trial, the
court informed the parties that it would rule on the admissibility of the testimony of Drs. Kemp
and Suhayda when it issued a final opinion. 12/13/11 TR at 667.
21
Federal Rule of Evidence 801(c) provides, “‘Hearsay’ means a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” FED. R. EVID. 801(c).
22
Federal Rule of Evidence 802 provides, “Hearsay is not admissible unless any of the
following provides otherwise: a federal statute; these rules; or other rules prescribed by the
Supreme Court [of the United States].” FED. R. EVID. 802.
13
f. Plaintiffs’ Declarations And Depositions.
Plaintiffs proffered fifty-two depositions and declarations. The Government objects to
forty-six23 of these exhibits. Dkt. No. 178-1, at 29–34. The Government objects to twelve of these
exhibits on hearsay grounds and to SPX.0586 on grounds of relevance and cumulativeness. Dkt.
No. 178-1, at 29–30, 32–33. In addition, the Government objects to thirty-three exhibits as whole
documents, but not to those portions previously admitted. Dkt. No. 178-1, at 29–34.
As to SPX.0586, the court rules that it “has a tendency to make a fact more or less probable”
and that “the fact is of consequence in determining the action.” FED. R. EVID. 401; see also FED.
R. EVID. 402 (stating that “relevant evidence is admissible”). And, the court rules that the
“probative value” of this exhibit is not “substantially outweighed by [the] danger of . . . needlessly
presenting cumulative evidence.” FED. R. EVID. 403. Therefore, SPX.0586 is admitted.
As to hearsay, the twelve exhibits are four sworn declarations, one technical report, four
photograph exhibits, and three letters. Dkt. No. 178-1, at 29–30, 32–33. The four sworn
declarations are inadmissible hearsay. See FED. R. EVID. 801(c); FED. R. EVID. 802. In addition,
because Plaintiffs did not properly authenticate the photographs in SPX.0580–83, these exhibits
are inadmissible. See FED. R. EVID. 901.24 But, SPX.0570 is a technical report prepared by the
Army Corps that the court rules is admissible under the public records and business records
exceptions to the hearsay prohibition. See FED. R. EVID. 803(8) (public records exception); FED.
R. EVID. 803(6) (business records exception). SPX.0584, SPX.0588, and SPX.0590 are letters sent
by government officials that also satisfy the public records and business records exceptions to the
hearsay prohibition. See FED. R. EVID. 803(8) (public records exception); FED. R. EVID. 803(6)
(business records exception).
As to the thirty-three exhibits to which the Government objects with exception to those
portions designated and previously admitted, the Government does not present a “specific ground”
or a ground that is “apparent from the context.” FED. R. EVID. 103(a)(1)(B); see also Dkt. No.
178-1, at 29–34. Therefore, the court rules that these exhibits are admissible in their entirety.
For these reasons, the court rules that thirty-eight of Plaintiffs’ declarations and depositions
exhibits to which the Government objects are admitted, but eight of these exhibits are not. See
Court Exhibit A § II.A.1.f; Court Exhibit B § II.A.1.f.
23
The forty-six exhibits are: SPX.0529; SPX.0530; SPX.0531; SPX.0533; SPX.0536;
SPX.0537; SPX.0538; SPX.0539; SPX.0540; SPX.0542; SPX.0547; SPX.0548; SPX.0556;
SPX.0557; SPX.0558; SPX.0560; SPX.0563; SPX.0564; SPX.0566; SPX.0568; SPX.0570;
SPX.0571; SPX.0573; SPX.0574; SPX.0575; SPX.0577; SPX.0578; SPX.0579; SPX.0580;
SPX.0581; SPX.0582; SPX.0583; SPX.0584; SPX.0586; SPX.0588; SPX.0590; SPX.0594;
SPX.0597; SPX.0598; SPX.0603; SPX.0609; SPX.0613; SPX.0615; SPX.0617; SPX.0618;
SPX.0624. Five of these exhibits were admitted in their entirety in Robinson.
24
Federal Rule of Evidence 901 provides, “To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” FED. R. EVID. 901.
14
g. Congressional Documents.
Plaintiffs proffered ten congressional documents, of which the Government objects to
nine25 on the grounds of relevance and that they are cumulative. Dkt. No. 178-1, at 37–38.
As to relevance, the nine congressional document exhibits to which the Government
objects include hearing statements and reports on Hurricane Katrina and the Army Corps’
response. Dkt. No. 178-1, at 37–38. The court rules that these exhibits are relevant, because they
“ha[ve] a tendency to make a fact more or less probable” and “the fact is of consequence in
determining the action.” FED. R. EVID. 401; see also FED. R. EVID. 402 (stating that “relevant
evidence is admissible”).
In addition, the court rules that the “probative value” of these exhibits is not “substantially
outweighed by [the] danger of . . . needlessly presenting cumulative evidence.” FED. R. EVID. 403.
For these reasons, the court rules that the congressional document exhibits are admitted.
See Court Exhibit A § II.A.1.g.
h. St. Bernard Parish Studies.
Plaintiffs proffered twenty-one St. Bernard Parish studies, to five26 of which the
Government objects on hearsay grounds. Dkt. No. 178-1, at 38–39. Two exhibits were written by
St. Bernard Parish, and three exhibits were prepared by a private company on behalf of St. Bernard
Parish. Compare SPX.0715 and SPX.0722, with SPX.0719, SPX.0720, and SPX.0721. The court
rules that these exhibits fall within the public records and business records exceptions to the
hearsay prohibition. See FED. R. EVID. 803(8) (public records exception); FED. R. EVID. 803(6)
(business records exception).
For these reasons, the court rules that the St. Bernard Parish studies are admitted. See Court
Exhibit A § II.A.1.h.
i. Additional Reports.
Plaintiffs proffered twenty-one additional reports, to nineteen27 of which the Government
objects. Dkt. No. 178-1, at 39–42. The Government objects to seventeen exhibits on hearsay
25
The nine congressional exhibits are: SPX.0687; SPX.0688; SPX.0689; SPX.0690;
SPX.0692; SPX.0693; SPX.0696; SPX.0697; SPX.0698. Four of these exhibits were admitted in
their entirety in Robinson. Dkt. No. 178-1, at 37–38.
26
The five St. Bernard Parish studies are: SPX.0715; SPX.0719; SPX.0720; SPX.0721;
SPX.0722.
27
The nineteen additional reports are: SPX.0726; SPX.0728; SPX.0732; SPX.0733;
SPX.0734; SPX.0736; SPX.0737; SPX.0741; SPX.0743; SPX.0744; SPX.0745; SPX.0746;
SPX.0747; SPX.0748; SPX.0749; SPX.0750; SPX.0755; SPX.0756; SPX.0757. Two of these
exhibits were admitted in their entirety in Robinson, and one was admitted, in part.
15
grounds, to SPX.0728 on hearsay and relevance grounds, and to SPX.0732 on relevance and
cumulativeness grounds. Dkt. No 178-1, at 39–42.
Fourteen of the seventeen exhibits to which the Government objects are: reports prepared
by or with assistance from a state or federal government; city or parish ordinances; a government
employee report; or reports prepared by the National Research Council that is funded by the federal
government. Dkt. No. 178-1, at 39–42. Therefore, the court rules that these exhibits fall within
the public records and business records exceptions to the hearsay prohibition. See FED. R. EVID.
803(8) (public records exception); FED. R. EVID. 803(6) (business records exception).
Two other exhibits, SPX.0749 and SPX.0750, are articles that analyze risk in hurricane
prone areas that were coauthored by an academic and ITEP’s Risk and Reliability Team Leader.
SPX.0757 is an unidentified map of St. Bernard Parish properties with no known author.
Therefore, the court rules that these documents are inadmissible hearsay, because SPX.0749 and
SPX.0750 are articles, and SPX.0757 lacks foundation. See FED. R. EVID. 801(c) (hearsay
definition); FED. R. EVID. 802 (hearsay prohibition).
As to relevance, SPX.0728 is an October 13, 1969 letter from the General Superintendent
of the New Orleans Sewage and Water Board that discusses the modeling of historical hurricane
data, and SPX.0732 is an October 20, 2000 status report of the modification of the MR-GO
prepared for the Environmental Protection Agency. The court rules that these exhibits are relevant,
because they “ha[ve] a tendency to make a fact more or less probable” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401; see also FED. R. EVID. 402 (stating
that “relevant evidence is admissible”).
As to whether the SPX.0732 is cumulative, the court rules that the “probative value” of
SPX.0732 is not “substantially outweighed by [the] danger of . . . needlessly presenting cumulative
evidence.” FED. R. EVID. 403.
For these reasons, the court rules that sixteen of these exhibits are admitted, but three
exhibits are not. See Court Exhibit A § II.A.1.i; Court Exhibit B § II.A.1.i.
j. Articles.
Plaintiffs proffered thirteen newspaper articles to which the Government objects on hearsay
grounds. Dkt. No. 178-1, at 42.28
These newspaper articles are hearsay and are not admissible for the truth of the matter
asserted. See FED. R. EVID. 801(c); FED. R. EVID. 802; see also Wathen v. United States, 208 Ct.
Cl. 342, 355 (1975) (holding that newspaper articles were hearsay).
For these reasons, the court rules that the newspaper articles are not admitted. See Court
Exhibit B § II.A.1.j.
28
The thirteen newspaper articles are: SPX.0758; SPX.0759; SPX.0760; SPX.0761;
SPX.0762; SPX.0763; SPX.0764; SPX.0765; SPX.0766; SPX.0767; SPX.0770; SPX.0771;
SPX.0772.
16
k. Mississippi River-Gulf Outlet Closure Committee Documents.
Plaintiffs proffered twenty-eight MR-GO Closure Committee documents to which the
Government objects on hearsay grounds. Dkt. No. 178-1, at 42–44.29 These exhibits primarily
are meeting minutes from the Committee, as well as reports and maps. Dkt No. 178-1, at 42–44.
The MR-GO Closure Committee consists of a public policy committee and technical advisory
committee “to design and develop a cost effective program to phase out the MRGO[.]” SPX.0773,
at PDF 5. Therefore, the court rules that these exhibits fall within the public records and business
records exceptions to the hearsay prohibition. See FED. R. EVID. 803(8) (public records exception);
FED. R. EVID. 803(6) (business records exception).
For these reasons, the court rules that the MR-GO Closure Committee documents are
admitted. See Court Exhibit A § II.A.1.k.
l. Property Records Of Representative Plaintiffs.
Plaintiffs proffered 142 exhibits regarding the property records of representative Plaintiffs.
Dkt. No. 178-1, at 44–62. The Government objects to three of these exhibits, one without
specifying a ground and two as to the “portions of the document describing or related to properties
not listed in the operative complaint.” Dkt. No. 178-1, at 45.30 But, the Government does not
present a “specific ground,” and the ground is not “apparent from the context.” FED. R. EVID.
103(a)(1)(B); see also Dkt. No. 178-1, at 29–34. Therefore, the court rules that these exhibits are
admissible in their entirety.
For these reasons, the court rules that the exhibits regarding property records of
representative Plaintiffs are admitted. See Court Exhibit A § II.A.1.l.
m. Multimedia And Miscellaneous Documents.
Plaintiffs proffered ninety-two multimedia and miscellaneous documents. The
31
Government objects to eighty-nine on the following grounds: relevance; cumulativeness;
hearsay; lack of foundation; RCFC 26; and Daubert. Dkt. No. 178-1, at 62–68.
29
The twenty-eight MR-GO Closure Committee exhibits are: SPX.0773; SPX.0774;
SPX.0777; SPX.0780; SPX.0783; SPX.0785; SPX.0788; SPX.0797; SPX.0807; SPX.0817;
SPX.0822; SPX.0824; SPX.0825; SPX.0826; SPX.0828; SPX.0830; SPX.0832; SPX.0845;
SPX.0851; SPX.0852; SPX.0853; SPX.0854; SPX.0855; SPX.0857; SPX.0865; SPX.0867;
SPX.0869; SPX.0880. Seventeen of these exhibits were admitted in their entirety in Robinson.
30
The three exhibits are: SPX.0902; SPX.0906; SPX.0907.
31
The eighty-nine exhibits are: SPX.01042; SPX.01054; SPX.01056; SPX.01057;
SPX.01058; SPX.01059; SPX.01060; SPX.01062; SPX.01063; SPX.01066; SPX.01067;
SPX.01068; SPX.01069; SPX.01070; SPX.01071; SPX.01072; SPX.01073; SPX.01074;
SPX.01075; SPX.01077; SPX.01079; SPX.01082; SPX.01083; SPX.01084; SPX.01086;
SPX.01087; SPX.01088; SPX.01089; SPX.01090; SPX.01091; SPX.01092; SPX.01093;
SPX.01095; SPX.01096; SPX.01097; SPX.01098; SPX.01099; SPX.01100; SPX.01101;
17
The Government objects to eighty-one of these exhibits on relevance grounds. Dkt. No.
178-1, at 62–68. The eighty-one exhibits to which the Government objects include a variety of
documents discussing the MR-GO, flooding in Southeast Louisiana, and the Army Corps’
response to Hurricanes Katrina and Rita. Dkt. No. 178-1, at 62–68. Therefore, the court rules that
these exhibits are relevant, because they “ha[ve] a tendency to make a fact more or less probable,”
and “the fact is of consequence in determining the action.” FED. R. EVID. 401; see also FED. R.
EVID. 402 (stating that “relevant evidence is admissible”).
The Government objects to seventy-eight of these exhibits as cumulative. Dkt. No. 178-1,
at 62–68. The court rules that the “probative value” of these exhibits is not “substantially
outweighed by [the] danger of . . . needlessly presenting cumulative evidence.” FED. R. EVID. 403.
The Government objects to six of these exhibits, pursuant to RCFC 26, but does not identify
a particular subsection of RCFC 26. Dkt. No. 178-1, at 68. These exhibits are four Storm Atlas
Maps demonstrating surge levels, an undated model, and photographs from Hurricane Rita. Dkt.
No. 178-1, at 68; see also 12/14/11 TR at 1051–53. At trial, they were included in a witnesses’
binder (12/14/11 TR at 1051–53), but the court has been unable to determine whether these exhibits
were properly disclosed or otherwise complied with RCFC 26. Therefore, these exhibits are not
admitted.
The Government objects to fifty-three of these exhibits on hearsay grounds. Dkt. No. 178-
1, at 62–68. Six of these exhibits are inadmissible, pursuant to RCFC 26, and need not be
considered as to hearsay. Five of these exhibits are newspaper articles that are hearsay. See Fed.
R. Evid. 801(c) (hearsay definition); FED. R. EVID. 802 (hearsay prohibition); see also Wathen,
208 Ct. Cl. at 355 (holding that newspaper articles and an investigative report are hearsay and not
admissible). Three of these exhibits are government publications that fall under the public records
exception to the hearsay prohibition. See FED. R. EVID. 803(8) (public records exception). Thirty-
nine of these exhibits are emails, memoranda, reports, and other similar documents that satisfy the
business records exception to the hearsay prohibition. See FED. R. EVID. 803(6) (business records
exception). Therefore, forty-two of these exhibits are admissible hearsay, but five are
inadmissible.
The Government objects to SPX.01067 and SPX.01068 for lack of foundation. Dkt. No.
178-1, at 63. Neither of these exhibits was discussed at trial, and the court is unable to determine
the basis for admitting these documents. Therefore, SPX.01067 and SPX.01068 are not admitted.
SPX.01102; SPX.01103; SPX.01104; SPX.01106; SPX.01107; SPX.01109; SPX.01110;
SPX.01112; SPX.01113; SPX.01114; SPX.01115; SPX.01116; SPX.01117; SPX.01119;
SPX.01120; SPX.01121; SPX.01126; SPX.01127; SPX.01128; SPX.01130; SPX.01131;
SPX.01132; SPX.01133; SPX.01134; SPX.01136; SPX.01139; SPX.01140; SPX.01141;
SPX.01142; SPX.01143; SPX.01144; SPX.01145; SPX.01146; SPX.01148; SPX.01150;
SPX.01151; SPX.01152; SPX.01153; SPX.01155; SPX.01157; SPX.01158; SPX.01159;
SPX.01160; SPX.01161; SPX.01162; SPX.01163; SPX.01164; SPX.01165; SPX.01166;
SPX.01168. Three of these exhibits were admitted in their entirety in Robinson. Dkt. No. 178-1,
at 64.
18
The Government also objects SPX.01168, photographs from Hurricane Rita, based on
Daubert. Dkt. No. 178-1, at 68. The court has ruled that this exhibit is not admitted for lack of
foundation. Therefore, a Daubert analysis is unnecessary.
For these reasons, the court rules that seventy-nine of the ninety-two multimedia and
miscellaneous documents exhibits are admissible. See Court Exhibit A § II.A.1.m; Court Exhibit
B § II.A.1.m.
2. Robinson Exhibits.32
On December 5, 2011, the Government filed a Motion To Exclude Robinson Material Not
Independently Admissible In This Action (“Gov’t Mot.”). The Government objects to the “blanket
admission of evidence presented in Robinson” on three grounds. Gov’t Mot. at 1.
First, the Robinson record “does not address the proof elements Plaintiffs must establish in
this case,” because that case “involved analysis of the flooding incident to a single event—
Hurricane Katrina.” Gov’t Mot. at 2. It is impossible to “generalize possible flooding scenarios
from one storm to another,” and “the physical features on the ground . . . are significantly different
today[.]” Gov’t Mot. at 3.
Second, the Robinson trial transcripts are inadmissible hearsay. Gov’t Mot. at 3–5 (citing
FED. R. EVID. 801(c)(1)–(2) (defining hearsay as a statement “the declarant does not make while
testifying at the current trial or hearing . . . offer[ed] in evidence to prove the truth of the matter
asserted”); Anderson v. United States, 417 U.S. 211, 219–20 (1974) (holding that prior trial
testimony is not admissible to prove the truth of the matter asserted); Trs. of Univ. of
Pa. v. Lexington Ins. Co., 815 F.2d 890, 905 (3d Cir. 1987) (same); United States v. Arias, 575
F.2d 253, 254 n.1 (9th Cir. 1978) (same)). In addition, the Government “had neither the
opportunity nor similar motive to examine any witness who testified in Robinson,” so the Robinson
testimony does not satisfy Rule 804(b) of the Federal Rules of Evidence. Gov’t Mot. at 5 (citing
FED. R. EVID. 804(b)(1)(A)–(B) (excepting from the hearsay rule testimony “given as a witness at
trial, hearing, or lawful deposition, whether given during the current proceeding or a different one,”
if the party against whom the testimony is now offered had “an opportunity and similar motive to
develop [the testimony] by direct, cross-, or redirect examination”)).
Third, Plaintiffs failed to “designate[] any specific testimony from [Robinson] to offer as
evidence in this trial” or to “make . . . disclosures of any of the Robinson reports.” Gov’t Mot. at
5–6 (citing RCFC App. A ¶ 15(b) (“Any party intending to present substantive evidence by way
of deposition testimony . . . shall serve and file a separate motion for leave to file the transcript of
such testimony.”); RCFC 26(a) (governing the duty to disclose during discovery)). This
contravenes the RCFC’s and Federal Rules of Evidence’s attempts to prevent such “last minute
and undefined disclosure.” Gov’t Mot. at 7.
In this case, Plaintiffs seek to admit testimony and expert reports from Robinson. The
Government first argues that Robinson analyzed only Hurricane Katrina, whereas this case
involves multiple flooding events. Gov’t Mot. at 2–3. But, complete identity of issues is not
32
For a list of Robinson exhibits, see Court Exhibit A § II.A.2.
19
relevant to a hearsay analysis. See 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2150 (3d ed.) (“[S]ubstantial identity of issues, rather than precisely
the same subject matter, is all that is required.”).
Much of the Robinson evidence proffered by Plaintiffs in this case was testimony by
Government employees or experts. As such, it is not hearsay. See FED. R. EVID. 801(d)(2)(C)
(stating that statements “offered against an opposing party” and “made by the party’s agent or
employee on a matter within the scope of that relationship and while it existed” are not hearsay).
Other Robinson evidence was given under “circumstantial guarantees of trustworthiness,” i.e., at
trial; is “offered as evidence of a material fact,” e.g., the Army Corps constructed the MR-GO; “is
more probative . . . than any other evidence” reasonably obtainable; and “will best serve
the . . . interests of justice,” e.g., judicial efficiency and a comprehensive factual record. See FED.
R. EVID. 807(a). As such, this evidence is admissible under the residual exception to the hearsay
rule.
Moreover, on February 25, 2011, the court notified the parties that it planned to admit the
Robinson record, but the Government did not object for over nine months. 2/25/11 TR at 10–11.
Thus, the Government’s argument that the Robinson evidence constituted a last-minute and
undefined disclosure is inaccurate. The parties cited Robinson in their briefs and prepared for trial
with the understanding that Robinson evidence would be admitted. Dkt. No. 144, at 42
(Government Pre-Trial Brief); 11/1/10 TR at 13–14 (explaining that Plaintiffs would “need to
redepose some people,” if the Robinson materials were inadmissible). As such, the Government
waived its argument that the Robinson record should not be admitted. See United States v. Ziegler
Bolt & Parts Co., 111 F.3d 878, 882 (Fed. Cir. 1997) (holding that the United States Court of
Appeals for the Federal Circuit “places waiver within the discretion of the trial court, consistent
with its broad duties in managing the conduct of cases pending before it”).
Finally, the court has taken judicial notice of the Robinson record. Federal Rule of
Evidence 201(b) provides that “[t]he court may judicially notice a fact that is not subject to
reasonable dispute because it . . . (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b). Even though “[m]atters of
record in other courts are usually denied notice,” 2 MCCORMICK ON EVIDENCE § 330 (7th ed.
2013), the United States Court of Appeals for the Federal Circuit has taken judicial notice of
proceedings before other courts and tribunals. See, e.g., Old Reliable Wholesale, Inc. v. Cornell
Corp., 635 F.3d 539, 549 (Fed. Cir. 2011) (“[T]his court can take judicial notice of the fact that
the [Patent and Trademark Office] . . . issued a notice of intent to issue a reexamination certificate
confirming the patentability of all claims of the ‘950 patent.”); Advanced Software Design
Corp. v. Fed. Reserve Bank, 583 F.3d 1371, 1379 n.3 (Fed. Cir. 2009) (taking judicial notice of
bid protest proceedings at the Government Accountability Office but “stat[ing] no view on the
merits”); Phonometrics, Inc. v. Hospitality Int’l, Inc., 120 F. App’x 341, 344–45 (Fed. Cir. 2005)
(holding that the district court did not err in taking judicial notice of “facts in another case,”
because the court “merely recognized that the transcripts of prior court proceedings were sources
‘whose accuracy cannot reasonably be questioned’”). The Government has not argued that the
Robinson evidence’s accuracy can reasonably be questioned. As such, the court rules that the
proffered evidence from Robinson is “not subject to reasonable dispute” and is subject to judicial
notice. FED. R. EVID. 201(b).
20
For these reasons, the court rules that the Robinson exhibits are admissible. See Court
Exhibit A § II.A.2.
B. Court Exhibit.33
During trial, the court marked Dr. G. Paul Kemp’s testimony from Robinson as Court
Exhibit 9. 12/12/11 TR at 203. Because the court rules that the Robinson exhibits are admissible,
Court Exhibit 9 is admitted. See Court Exhibit A § II.B.
III. THE PARTIES’ EXPERT WITNESSES.
The parties each proffered the testimony of two expert witnesses for the December 12,
2011 to December 15, 2011 liability trial. The court ruled above that Plaintiffs’ experts, Dr. Joseph
N. Suhayda and Dr. G. Paul Kemp, were qualified as experts. See Section II.A.1.e. The
Government proffered Dr. Louis D. Britsch III34 and Dr. Donald T. Resio35 as experts. Both Drs.
Britsch and Resio have extensive educational qualifications and professional experience in
relevant fields. Therefore, the court rules that Drs. Britsch and Resio are qualified as expert
witnesses and that their testimony: “will help the trier of fact to understand the evidence”; “is based
on sufficient facts or data”; “is the product of reliable principles and methods”; and “the expert has
reliably applied the principles and methods to the facts[.]” FED. R. EVID. 702.
IV. CONCLUSION.
The documents listed in Court Exhibit A are admitted as evidence. See Court Exhibit A.
The documents listed in Court Exhibit B are not admitted as evidence. See Court Exhibit B.
The entire record submitted in this case contains additional documents, and this
Memorandum Opinion And Final Order On Evidentiary Issues does not withdraw these other
documents from the record of this case. In addition to the documents identified above, the record
of this case includes documents attached to multiple pleadings. By way of example, these
documents include those submitted in briefing related to the Government’s October 4, 2006
Motion To Dismiss (Dkt. Nos. 27–34); briefing related to the Government’s November 7, 2008
33
The Government previously objected to the wholesale admission of Robinson trial
evidence in this matter and objects to the use of Court Exhibit 9 in this case for the truth of the
matter asserted.
34
Dr. Louis D. Britsch, III is a geologist who manages the Geology Unit of the New
Orleans District of the United States Army Corps of Engineers. He obtained his B.S. in Geology
from Nicholls State University, his M.S. in Geology from Tulane University, and his Ph.D in
Coastal Geology from the University of New Orleans. He has worked for the Army Corps for the
past twenty-seven years. See 12/8/11 Britsch Direct at 1.
35
Dr. Donald T. Resio is the Director, Taylor Engineering Research Institute, at the
University of North Florida. He obtained an undergraduate, masters, and doctoral degrees from
the University of Virginia. His doctorate is in Environmental Science: Earth Sciences. See 12/8/11
Resio Direct at 2–4.
21
Motion For Summary Judgment (Dkt. Nos. 67, 70, 74); briefing related to the the Government’s
June 3, 2011 Motion For Summary Judgment (Dkt. Nos. 106, 107, 113, 114, 118, 119); briefing
related to the Government’s October 8, 2011 Motion To Dismiss The Claims Of Plaintiffs
Tommoso “Tommy” G. Tommaseo And Gwendolyn And Henry Adams (Dkt. Nos. 127, 148, 153);
briefing related to Plaintiffs’ June 22, 2010 Motion For Class Certification (Dkt. Nos. 91, 207);
and briefing related to the Government’s September 26, 2013 Motion For Partial Summary
Judgment Regarding Federal Grant Offsets (Dkt. Nos. 222, 235).
The Government’s December 5, 2011 Motion To Exclude is now moot.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
22