United States Department of the Interior

NATIONAL PARK SERVICE 1849 C Street NW

Washington DC 20240 IN REPLYREFER TO

H32(2280)

Ms Sandy Rosenthal Mr HJ Bosworth Jr Levees Org JUN 14 201l 1421 Soniat Street New Orleans LA 70115

Dear Ms Rosenthal and Mr Bosworth

Thank you for your letter of April 272012 appealing the United States Army Corps of Engineers (Corps) failure or refusal to nominate the New Orleans Levee Breach Sites - 1 i h

Street and hmer Harbor Navigation Canal in Orleans Parish Louisiana to the National Register of Historic Places (National Register) Your organizations nomination request is for two properties one under Federal ownership and one under nonfederal ownership and is therefore considered a concurrent nomination under 36 CFR sect 6010

The State of Louisiana (State) reviewed and processed the nomination as required in accordance with 36 CFR sectsect 606 and 6010 Although the State review board declined to recommend the nomination the Louisiana State Historic Preservation Officer (SHPO) signed the nomination certifying that the nomination was procedurally and professionally correct and that in the opinion of the SHPO the two properties described in the nomination meet the National Register Criteria The SHPO then forwarded the nomination to the Federal Preservation Officer (FPO) for the Corps citing 36 CFR 6011 Requests for nominations The Corps subsequently wrote the SHPO requesting additional time to respond to the nomination request After 60 days had elapsed your organization then elected to appeal the Corps failure or refusal to nominate to this office pursuant to 36 CFR sect 6012(a) The appeal arrived at the National Register on April 30 2012 At our request the Department of the Army sent the National Register a letter with its opinion on the nomination on May 31 2012 a copy of which is enclosed By letter dated June 8 2012 the Department of the Army sent us another letter on this topic a copy of which is also enclosed In these letters the Department of the Army states its opinion that the nomination is deficient and that the properties are not eligible for listing in the National Register

Although the flooding of New Orleans that occurred on August 292005 is of enormous importance both for its impact on New Orleans and its people and for what it says about flood control policies and practices the nomination submitted as the basis of this appeal is being returned This is because as explained in greater detail below the nomination as presented is technically and professionally inadequate under 36 CFR Part 60 Because of these inadequacies I must deny your appeal In reaching this decision I have carefully reviewed the

nomination and the other documentation submitted on appeal including your appeal letter the minutes of the State review board and correspondence involving you the State the Corps and various interested parties

Properties that have achieved significance within the last 50 years are not typically eligible for listing in the National Register An exception is made for those that demonstrate exceptional importance in accord with 36 CFR sect 604 Criteria Consideration (g) and the National Register Bulletin How to Apply the National Register Criteriaor Evaluation The 50 year rule is meant to allow for a reasoned balanced and dispassionate appraisal of the historic importance of a property Nominations for properties claiming exceptional importance under Criteria Consideration (g) must make a persuasive thoroughly documented case that what is being nominated is of exceptional significance and must be adequately documented and technically and professionally adequate before the nominated properties may be listed in the National Register The nomination for the New Orleans Levee Breach Sites - 1 i h Street and Inner Harbor Navigation Canal does not meet these requirements

The nomination acknowledges that levees and floodwalls failed in more than 50 locations but it does not adequately explain why the two breach sites identified in the nomination merit listing on their own in comparison to or in addition to others or to the system as a whole For example the nomination notes that two of the breaches in the Inner Harbor Navigation Canal combined were responsible for the flooding of the Lower Ninth Ward yet only one of these two breach sites is included in the nomination The nomination also states that before Hurricane Katrinas landfall breaches developed in four I-walls that of the 1 i h Street Canal and the east side north breach of the Inner Harbor Navigation Canal (the subject of this nomination) and the two breaches of the London Avenue Canal The nomination does not however include the London Avenue Canal breaches In addition the nomination does not adequately describe the effects of the flood on New Orleans beyond a description of the flooding and resultant deaths For example it does not adequately address the import of the events arising from the failure of the levees with respect to other impacts on the people affected the built environment the economy of the city and the policies for planning and construction

Some statements in the nomination make claims that are not supported by or attributed to any source and many of the passages that provide opinions are from the same source This nomination heavily relies on quoting reports and articles from a limited universe of studies and the language used in these direct quotations reflects the opinions of the study authors without providing any of the opinions of those who contest their findings Nearly every quotation used in the nomination that cites design failure as the root reason for the breaches is taken from a single author Robert G Bea who appears alone or with co-authors in three reports Each of these quotes presents Mr Beas opinion no differing opinions are offered weighed or evaluated I further note that the ongoing litigation in the United States Fifth Circuit Court of Appeals and the Federal district court in New Orleans demonstrates that there are disputed and unresolved matters of fact relating to the failure of the levees

The nomination notes that numerous studies have been done and provides descriptions of the three major studies but does not define what a major study is or what differentiates these studies from others It asserts that at the time of the nomination all studies agree whereas the Corps

has stated that there are other studies and expert opinions that provide differing opinions In addition although the nomination claims to use summarized comments from the Corps own study the Interagency Performance Evaluation Task Force report it does not provide quotes from the report only interpretation

There is no citation or quotation for the section on lawsuits wherein the nomination claims that the courts have held the Corps responsible for design defects of the I -wall and for the flooding resulting from the two east side IHNC breaches Thus I have been unable to verify those claims about the courts holdings

Finally the nomination as submitted has numerous technical errors that are also substantive because the sources of the information provided in the nomination are not clear thereby leaving the validity of the opinions and conclusions drawn in the nomination in question Many of the citations are missing from the nomination The following footnotes are missing 4 5 6 8 part of 910111213 part of 14151819202223282930313334353839 45 46 47 48505155566061646566737475 part of 80 81 82 87 and 88 The last line on the third page of Section 8 is also missing The pages are not numbered which also is a technical flaw And although footnotes are not specifically required in National Register nominations when they are not included the precise sources need to be provided in the text of the nomination This is of particular importance with respect to this nomination because certain facts and opinions included in the nomination are being disputed in ongoing Federal litigation

For the foregoing reasons I am denying your appeal of the New Orleans Levee Breach Sitesshy1i h Street and Inner Harbor Navigation Canal nomination The properties described in the nomination will not be listed in the National Register on the basis of the nomination as presented If any revised nomination is prepared it should be submitted to the appropriate nominating authority for consideration

Sincerely

Carol D Shull Interim Keeper of the National Register of Historic Places

Enclosures

cc LA SHPO lo-Ellen Darcy Assistant Secretary

of the Army (Civil Works)

DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS 108 ARMY PENTAGON

WASHINGTON DC 20310-01 08

MAY 3 1 2012 I ~JL ~ -

Mr J Paul Loether Chief National Register of Historic Places National Park Service 1849 C Street NW Washington DC 20240

Dear Mr Lother

I am responding to your May 4 2012 letter concernln~fthe National Register of Historic Places (NRHP) Nomination of the New Orleans Levee Breach Sites 17h Street and Inner Harbor Navigation Canals (IHNC) Orleans Parish Louisiana which you forwarded on December 272011 After evaluation and consideration by my office and the Corps Headquarters I have determined that the nomination should not be forwarded to your office under 36 CFR Part 60 The content of the nomination document is deficient in numerous respects on matters which are currently the subject of litigation and appeal before the United States Federal District Court for the Eastern District of Louisiana and the United States Fifth Circuit Court of Appeals and it fails to state a proper historical reason for finding the property is of exceptional importance under Criteria Consideration G to 36 CFR Part 604

This nomination concerns events that occurred less than seven years ago Pursuant to Historic Preservation regulations a nomination must demonstrate that a property is of exceptional importance to overcome the fifty-year period that has been established under the regulations as a guide for evaluating and ensuring an informed dispassionate judgment as to the importance of a property and its historical importance This nomination fails in that regard by focusing on the causes of specific floodwall failure rather than the effect of the flooding events on the community The latter is the proper context for evaluating the exceptional importance of a property under the

- -regu-Iations ---Such -an-evaiuation needs1he peTspective of time to properly evaluate the historic importance of the nominated sites

Turning to the specifics of the nomination the Louisiana National Register Review Committee has declined to recommend this same nomination in substantially its current form because of the length of the nomination and the lack of Committee expertise in the subject matter Also the nomination document relies in substantial part on the opinions of the plaintiffs litigation experts in the In re Katrina Canal Breaches Consolidated Litigation No 05-4182 (EDLa) to state in definitive terms the causes and reasons for breaches occurring at two of the floodwalls contained in the Lake Pontchartrain and Vicinity Hurricane Protection Project (LPV) However no consensus has been reached on these issues and the United States experts in the litigation have provided opinions opposing those of the plaintiffs experts The opinions on causation

Printed on Recycled Paper

and levee failure as set forth in the nomination document are being vigorously disputed in the ongoing litigation including a trial scheduled to commence on September 10 2012 in New Orleans concerning the IHNC breach that is the subject of the nomination In addition the document inaccurately states that the decision rendered by the federal court in January of 2008 held the US Army Corps of Engineers responsible That decision however dismissed all claims against the United States and was affirmed by the appellate court on March 2 2012 Also not all studies agree on the failure mechanisms of the levee and floodwall breaches as stated by the nomination which is a contested issue in litigation and should not be used as a factor in evaluating whether the property is of exceptional importance

Finally the nominations selection of the two sites as representative of the breaches along the entire LPV or as the impetus for the legislative efforts and reforms set forth in the nomination misrepresents-the facts The -overwhelming majority of breaching along the LPV during Hurricane Katrina occurred on levees and not floodwalls particularly the levees bordering St Bernard Parish It was the performance of the entire LPV system and the lessons learned on many fronts that resulted in legislative efforts and reforms The attribution of those efforts and reforms to just these two breaches and their presentation as representative of the LPV systems performance presents an incomplete and inaccurate picture

For these reasons I therefore decline to forward this nomination document to the lJational Park Service

Very truly yours

J -Ellen Darcy ecretary of the Ar ivil Works)

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

nomination and the other documentation submitted on appeal including your appeal letter the minutes of the State review board and correspondence involving you the State the Corps and various interested parties

Properties that have achieved significance within the last 50 years are not typically eligible for listing in the National Register An exception is made for those that demonstrate exceptional importance in accord with 36 CFR sect 604 Criteria Consideration (g) and the National Register Bulletin How to Apply the National Register Criteriaor Evaluation The 50 year rule is meant to allow for a reasoned balanced and dispassionate appraisal of the historic importance of a property Nominations for properties claiming exceptional importance under Criteria Consideration (g) must make a persuasive thoroughly documented case that what is being nominated is of exceptional significance and must be adequately documented and technically and professionally adequate before the nominated properties may be listed in the National Register The nomination for the New Orleans Levee Breach Sites - 1 i h Street and Inner Harbor Navigation Canal does not meet these requirements

The nomination acknowledges that levees and floodwalls failed in more than 50 locations but it does not adequately explain why the two breach sites identified in the nomination merit listing on their own in comparison to or in addition to others or to the system as a whole For example the nomination notes that two of the breaches in the Inner Harbor Navigation Canal combined were responsible for the flooding of the Lower Ninth Ward yet only one of these two breach sites is included in the nomination The nomination also states that before Hurricane Katrinas landfall breaches developed in four I-walls that of the 1 i h Street Canal and the east side north breach of the Inner Harbor Navigation Canal (the subject of this nomination) and the two breaches of the London Avenue Canal The nomination does not however include the London Avenue Canal breaches In addition the nomination does not adequately describe the effects of the flood on New Orleans beyond a description of the flooding and resultant deaths For example it does not adequately address the import of the events arising from the failure of the levees with respect to other impacts on the people affected the built environment the economy of the city and the policies for planning and construction

Some statements in the nomination make claims that are not supported by or attributed to any source and many of the passages that provide opinions are from the same source This nomination heavily relies on quoting reports and articles from a limited universe of studies and the language used in these direct quotations reflects the opinions of the study authors without providing any of the opinions of those who contest their findings Nearly every quotation used in the nomination that cites design failure as the root reason for the breaches is taken from a single author Robert G Bea who appears alone or with co-authors in three reports Each of these quotes presents Mr Beas opinion no differing opinions are offered weighed or evaluated I further note that the ongoing litigation in the United States Fifth Circuit Court of Appeals and the Federal district court in New Orleans demonstrates that there are disputed and unresolved matters of fact relating to the failure of the levees

The nomination notes that numerous studies have been done and provides descriptions of the three major studies but does not define what a major study is or what differentiates these studies from others It asserts that at the time of the nomination all studies agree whereas the Corps

has stated that there are other studies and expert opinions that provide differing opinions In addition although the nomination claims to use summarized comments from the Corps own study the Interagency Performance Evaluation Task Force report it does not provide quotes from the report only interpretation

There is no citation or quotation for the section on lawsuits wherein the nomination claims that the courts have held the Corps responsible for design defects of the I -wall and for the flooding resulting from the two east side IHNC breaches Thus I have been unable to verify those claims about the courts holdings

Finally the nomination as submitted has numerous technical errors that are also substantive because the sources of the information provided in the nomination are not clear thereby leaving the validity of the opinions and conclusions drawn in the nomination in question Many of the citations are missing from the nomination The following footnotes are missing 4 5 6 8 part of 910111213 part of 14151819202223282930313334353839 45 46 47 48505155566061646566737475 part of 80 81 82 87 and 88 The last line on the third page of Section 8 is also missing The pages are not numbered which also is a technical flaw And although footnotes are not specifically required in National Register nominations when they are not included the precise sources need to be provided in the text of the nomination This is of particular importance with respect to this nomination because certain facts and opinions included in the nomination are being disputed in ongoing Federal litigation

For the foregoing reasons I am denying your appeal of the New Orleans Levee Breach Sitesshy1i h Street and Inner Harbor Navigation Canal nomination The properties described in the nomination will not be listed in the National Register on the basis of the nomination as presented If any revised nomination is prepared it should be submitted to the appropriate nominating authority for consideration

Sincerely

Carol D Shull Interim Keeper of the National Register of Historic Places

Enclosures

cc LA SHPO lo-Ellen Darcy Assistant Secretary

of the Army (Civil Works)

DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS 108 ARMY PENTAGON

WASHINGTON DC 20310-01 08

MAY 3 1 2012 I ~JL ~ -

Mr J Paul Loether Chief National Register of Historic Places National Park Service 1849 C Street NW Washington DC 20240

Dear Mr Lother

I am responding to your May 4 2012 letter concernln~fthe National Register of Historic Places (NRHP) Nomination of the New Orleans Levee Breach Sites 17h Street and Inner Harbor Navigation Canals (IHNC) Orleans Parish Louisiana which you forwarded on December 272011 After evaluation and consideration by my office and the Corps Headquarters I have determined that the nomination should not be forwarded to your office under 36 CFR Part 60 The content of the nomination document is deficient in numerous respects on matters which are currently the subject of litigation and appeal before the United States Federal District Court for the Eastern District of Louisiana and the United States Fifth Circuit Court of Appeals and it fails to state a proper historical reason for finding the property is of exceptional importance under Criteria Consideration G to 36 CFR Part 604

This nomination concerns events that occurred less than seven years ago Pursuant to Historic Preservation regulations a nomination must demonstrate that a property is of exceptional importance to overcome the fifty-year period that has been established under the regulations as a guide for evaluating and ensuring an informed dispassionate judgment as to the importance of a property and its historical importance This nomination fails in that regard by focusing on the causes of specific floodwall failure rather than the effect of the flooding events on the community The latter is the proper context for evaluating the exceptional importance of a property under the

- -regu-Iations ---Such -an-evaiuation needs1he peTspective of time to properly evaluate the historic importance of the nominated sites

Turning to the specifics of the nomination the Louisiana National Register Review Committee has declined to recommend this same nomination in substantially its current form because of the length of the nomination and the lack of Committee expertise in the subject matter Also the nomination document relies in substantial part on the opinions of the plaintiffs litigation experts in the In re Katrina Canal Breaches Consolidated Litigation No 05-4182 (EDLa) to state in definitive terms the causes and reasons for breaches occurring at two of the floodwalls contained in the Lake Pontchartrain and Vicinity Hurricane Protection Project (LPV) However no consensus has been reached on these issues and the United States experts in the litigation have provided opinions opposing those of the plaintiffs experts The opinions on causation

Printed on Recycled Paper

and levee failure as set forth in the nomination document are being vigorously disputed in the ongoing litigation including a trial scheduled to commence on September 10 2012 in New Orleans concerning the IHNC breach that is the subject of the nomination In addition the document inaccurately states that the decision rendered by the federal court in January of 2008 held the US Army Corps of Engineers responsible That decision however dismissed all claims against the United States and was affirmed by the appellate court on March 2 2012 Also not all studies agree on the failure mechanisms of the levee and floodwall breaches as stated by the nomination which is a contested issue in litigation and should not be used as a factor in evaluating whether the property is of exceptional importance

Finally the nominations selection of the two sites as representative of the breaches along the entire LPV or as the impetus for the legislative efforts and reforms set forth in the nomination misrepresents-the facts The -overwhelming majority of breaching along the LPV during Hurricane Katrina occurred on levees and not floodwalls particularly the levees bordering St Bernard Parish It was the performance of the entire LPV system and the lessons learned on many fronts that resulted in legislative efforts and reforms The attribution of those efforts and reforms to just these two breaches and their presentation as representative of the LPV systems performance presents an incomplete and inaccurate picture

For these reasons I therefore decline to forward this nomination document to the lJational Park Service

Very truly yours

J -Ellen Darcy ecretary of the Ar ivil Works)

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

has stated that there are other studies and expert opinions that provide differing opinions In addition although the nomination claims to use summarized comments from the Corps own study the Interagency Performance Evaluation Task Force report it does not provide quotes from the report only interpretation

There is no citation or quotation for the section on lawsuits wherein the nomination claims that the courts have held the Corps responsible for design defects of the I -wall and for the flooding resulting from the two east side IHNC breaches Thus I have been unable to verify those claims about the courts holdings

Finally the nomination as submitted has numerous technical errors that are also substantive because the sources of the information provided in the nomination are not clear thereby leaving the validity of the opinions and conclusions drawn in the nomination in question Many of the citations are missing from the nomination The following footnotes are missing 4 5 6 8 part of 910111213 part of 14151819202223282930313334353839 45 46 47 48505155566061646566737475 part of 80 81 82 87 and 88 The last line on the third page of Section 8 is also missing The pages are not numbered which also is a technical flaw And although footnotes are not specifically required in National Register nominations when they are not included the precise sources need to be provided in the text of the nomination This is of particular importance with respect to this nomination because certain facts and opinions included in the nomination are being disputed in ongoing Federal litigation

For the foregoing reasons I am denying your appeal of the New Orleans Levee Breach Sitesshy1i h Street and Inner Harbor Navigation Canal nomination The properties described in the nomination will not be listed in the National Register on the basis of the nomination as presented If any revised nomination is prepared it should be submitted to the appropriate nominating authority for consideration

Sincerely

Carol D Shull Interim Keeper of the National Register of Historic Places

Enclosures

cc LA SHPO lo-Ellen Darcy Assistant Secretary

of the Army (Civil Works)

DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS 108 ARMY PENTAGON

WASHINGTON DC 20310-01 08

MAY 3 1 2012 I ~JL ~ -

Mr J Paul Loether Chief National Register of Historic Places National Park Service 1849 C Street NW Washington DC 20240

Dear Mr Lother

I am responding to your May 4 2012 letter concernln~fthe National Register of Historic Places (NRHP) Nomination of the New Orleans Levee Breach Sites 17h Street and Inner Harbor Navigation Canals (IHNC) Orleans Parish Louisiana which you forwarded on December 272011 After evaluation and consideration by my office and the Corps Headquarters I have determined that the nomination should not be forwarded to your office under 36 CFR Part 60 The content of the nomination document is deficient in numerous respects on matters which are currently the subject of litigation and appeal before the United States Federal District Court for the Eastern District of Louisiana and the United States Fifth Circuit Court of Appeals and it fails to state a proper historical reason for finding the property is of exceptional importance under Criteria Consideration G to 36 CFR Part 604

This nomination concerns events that occurred less than seven years ago Pursuant to Historic Preservation regulations a nomination must demonstrate that a property is of exceptional importance to overcome the fifty-year period that has been established under the regulations as a guide for evaluating and ensuring an informed dispassionate judgment as to the importance of a property and its historical importance This nomination fails in that regard by focusing on the causes of specific floodwall failure rather than the effect of the flooding events on the community The latter is the proper context for evaluating the exceptional importance of a property under the

- -regu-Iations ---Such -an-evaiuation needs1he peTspective of time to properly evaluate the historic importance of the nominated sites

Turning to the specifics of the nomination the Louisiana National Register Review Committee has declined to recommend this same nomination in substantially its current form because of the length of the nomination and the lack of Committee expertise in the subject matter Also the nomination document relies in substantial part on the opinions of the plaintiffs litigation experts in the In re Katrina Canal Breaches Consolidated Litigation No 05-4182 (EDLa) to state in definitive terms the causes and reasons for breaches occurring at two of the floodwalls contained in the Lake Pontchartrain and Vicinity Hurricane Protection Project (LPV) However no consensus has been reached on these issues and the United States experts in the litigation have provided opinions opposing those of the plaintiffs experts The opinions on causation

Printed on Recycled Paper

and levee failure as set forth in the nomination document are being vigorously disputed in the ongoing litigation including a trial scheduled to commence on September 10 2012 in New Orleans concerning the IHNC breach that is the subject of the nomination In addition the document inaccurately states that the decision rendered by the federal court in January of 2008 held the US Army Corps of Engineers responsible That decision however dismissed all claims against the United States and was affirmed by the appellate court on March 2 2012 Also not all studies agree on the failure mechanisms of the levee and floodwall breaches as stated by the nomination which is a contested issue in litigation and should not be used as a factor in evaluating whether the property is of exceptional importance

Finally the nominations selection of the two sites as representative of the breaches along the entire LPV or as the impetus for the legislative efforts and reforms set forth in the nomination misrepresents-the facts The -overwhelming majority of breaching along the LPV during Hurricane Katrina occurred on levees and not floodwalls particularly the levees bordering St Bernard Parish It was the performance of the entire LPV system and the lessons learned on many fronts that resulted in legislative efforts and reforms The attribution of those efforts and reforms to just these two breaches and their presentation as representative of the LPV systems performance presents an incomplete and inaccurate picture

For these reasons I therefore decline to forward this nomination document to the lJational Park Service

Very truly yours

J -Ellen Darcy ecretary of the Ar ivil Works)

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

DEPARTMENT OF THE ARMY OFFICE OF THE ASSISTANT SECRETARY

CIVIL WORKS 108 ARMY PENTAGON

WASHINGTON DC 20310-01 08

MAY 3 1 2012 I ~JL ~ -

Mr J Paul Loether Chief National Register of Historic Places National Park Service 1849 C Street NW Washington DC 20240

Dear Mr Lother

I am responding to your May 4 2012 letter concernln~fthe National Register of Historic Places (NRHP) Nomination of the New Orleans Levee Breach Sites 17h Street and Inner Harbor Navigation Canals (IHNC) Orleans Parish Louisiana which you forwarded on December 272011 After evaluation and consideration by my office and the Corps Headquarters I have determined that the nomination should not be forwarded to your office under 36 CFR Part 60 The content of the nomination document is deficient in numerous respects on matters which are currently the subject of litigation and appeal before the United States Federal District Court for the Eastern District of Louisiana and the United States Fifth Circuit Court of Appeals and it fails to state a proper historical reason for finding the property is of exceptional importance under Criteria Consideration G to 36 CFR Part 604

This nomination concerns events that occurred less than seven years ago Pursuant to Historic Preservation regulations a nomination must demonstrate that a property is of exceptional importance to overcome the fifty-year period that has been established under the regulations as a guide for evaluating and ensuring an informed dispassionate judgment as to the importance of a property and its historical importance This nomination fails in that regard by focusing on the causes of specific floodwall failure rather than the effect of the flooding events on the community The latter is the proper context for evaluating the exceptional importance of a property under the

- -regu-Iations ---Such -an-evaiuation needs1he peTspective of time to properly evaluate the historic importance of the nominated sites

Turning to the specifics of the nomination the Louisiana National Register Review Committee has declined to recommend this same nomination in substantially its current form because of the length of the nomination and the lack of Committee expertise in the subject matter Also the nomination document relies in substantial part on the opinions of the plaintiffs litigation experts in the In re Katrina Canal Breaches Consolidated Litigation No 05-4182 (EDLa) to state in definitive terms the causes and reasons for breaches occurring at two of the floodwalls contained in the Lake Pontchartrain and Vicinity Hurricane Protection Project (LPV) However no consensus has been reached on these issues and the United States experts in the litigation have provided opinions opposing those of the plaintiffs experts The opinions on causation

Printed on Recycled Paper

and levee failure as set forth in the nomination document are being vigorously disputed in the ongoing litigation including a trial scheduled to commence on September 10 2012 in New Orleans concerning the IHNC breach that is the subject of the nomination In addition the document inaccurately states that the decision rendered by the federal court in January of 2008 held the US Army Corps of Engineers responsible That decision however dismissed all claims against the United States and was affirmed by the appellate court on March 2 2012 Also not all studies agree on the failure mechanisms of the levee and floodwall breaches as stated by the nomination which is a contested issue in litigation and should not be used as a factor in evaluating whether the property is of exceptional importance

Finally the nominations selection of the two sites as representative of the breaches along the entire LPV or as the impetus for the legislative efforts and reforms set forth in the nomination misrepresents-the facts The -overwhelming majority of breaching along the LPV during Hurricane Katrina occurred on levees and not floodwalls particularly the levees bordering St Bernard Parish It was the performance of the entire LPV system and the lessons learned on many fronts that resulted in legislative efforts and reforms The attribution of those efforts and reforms to just these two breaches and their presentation as representative of the LPV systems performance presents an incomplete and inaccurate picture

For these reasons I therefore decline to forward this nomination document to the lJational Park Service

Very truly yours

J -Ellen Darcy ecretary of the Ar ivil Works)

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

and levee failure as set forth in the nomination document are being vigorously disputed in the ongoing litigation including a trial scheduled to commence on September 10 2012 in New Orleans concerning the IHNC breach that is the subject of the nomination In addition the document inaccurately states that the decision rendered by the federal court in January of 2008 held the US Army Corps of Engineers responsible That decision however dismissed all claims against the United States and was affirmed by the appellate court on March 2 2012 Also not all studies agree on the failure mechanisms of the levee and floodwall breaches as stated by the nomination which is a contested issue in litigation and should not be used as a factor in evaluating whether the property is of exceptional importance

Finally the nominations selection of the two sites as representative of the breaches along the entire LPV or as the impetus for the legislative efforts and reforms set forth in the nomination misrepresents-the facts The -overwhelming majority of breaching along the LPV during Hurricane Katrina occurred on levees and not floodwalls particularly the levees bordering St Bernard Parish It was the performance of the entire LPV system and the lessons learned on many fronts that resulted in legislative efforts and reforms The attribution of those efforts and reforms to just these two breaches and their presentation as representative of the LPV systems performance presents an incomplete and inaccurate picture

For these reasons I therefore decline to forward this nomination document to the lJational Park Service

Very truly yours

J -Ellen Darcy ecretary of the Ar ivil Works)

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

R CElt ED 2280

DEPARTMENT OF THE ARMY ) us ARMY CORPS OF ENGINEERS

441 G STREET NW WASHINGTON DC 20314-1000

CECC-L 8 June 2012

Mr J Paul Loether Chief National Register of Historic Places and National Landmarks Programs National Park Service 1849 C Street NW Washington DC 20240

SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

Dear Mr Loether

This letter responds to your request made in the May 25 th meeting and teleconference for specific comment as to why the Leveesorg nomination is not adequately documented nor teclmically and professionally correct and sufficient Specifically the nomination document inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional significance because of engineering failures attributable to the US Anny Corps of Engineers (USACE) that resulted in catastrophe and changes in national flood control policies and practices Nomination at 9 The basis for this explanation however rests solely on the opinions of Katrina plaintiffs expert witnesses and on facts which are vigorously disputed in ongoing federal litigation involving the two nominated sites The nomination fails to acknowledge the lack of consensus in the engineering and scientific communities on the very issues upon which the nomination relies The nomination document also misrepresents the trial court decisions involving the two sites in an attempt to demonstrate that there is a consensus on the representations made in the nomination There is in fact no such consensus The exceptional significance of these two sites cannot therefore be objectively established based on the nomination document Explanation of this fact is set forth below

I Lack of consensus in the engineering and scientific communities

The nomination relies on the existence of a unanimous consensus that USACE engineering failures resulted in the floodwall breaches at the two nominated sites At the time of this nomination all studies agree on the failure mechanisms of the levee and floodwall breaches The unanimous consensus of these studies is that engineering errors created the catastrophe Nomination at 25 Nothing could be further from the truth as is evident by reference to the voluminous expert opinion submitted by the parties to the Katrina litigation

A In re Katrina Canal Breaches Consolidated Litigation (Robinson) No 05-4182 (EDLa)

The Robinson case in the consolidated Katrina litigation is the lead test case for liability from flooding related to the Mississippi River Gulf Outlet (MRGO) the Gulf Intracoastal Waterway and the two east side IHNC breach sites including the one that is the subject of this

CECC SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

nomination All of the expert reports which have been submitted at the Robinson trial held in April and May of2009 are hosted by plaintiffs liaison counsel and can be reviewed at vvwwkatrinadocscomexpertscfil1 These reports evidence the disagreement within the engineering and scientific communities as to the cause of the levee and floodwall breaches and damages resulting from Katrina These reports are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES PLAINTIFFS 22 Dec 08 Johannes Westerink (surge 23 June 08 de Wit Maaskant Kok and Vrijling modeling) (flow modeling)

21 Jan 09 Vrij ling Kok de Wit and Gautier 21 Dec 08 Donald Resio (wind and wave 9 July 08 Gautier Kok and Vrijling (wave interaction) modeling) 24 March 09 Donald Resio 13 Nov 08 Gautier Kok and Vrijling 17 Dec 08 Bruce Ebersole (Surge 11 July 08 Paul Kemp (MRGO effect on surge modeling hydrology and levee system waves and flooding) performance) 14 Jan 09 Paul Kemp 18 Dec 08 Steven Fitzgerald (Interior 9 July 08 Kok Aalberts Kanning Maaskant drainage) and de Wit (polder flood simulations) 18 Dec 08 Thomas Wolff (geotechnical 14 July 08 Robert Bea (breach mechanism) and engineering design) 29 Jan 09 Robert Bea Ivor van Heerden 18 Dec 08 Reed Mosher (geotechnical Paul Kemp project evaluation amp performance) 3 April 09 Robert Bea

15 May 09 Robert Bea 22 Dec 08 John Barras (wetland habitat 11 July 08 Duncan Fitzgerald and Shea Penland mapping) (geology and geomorphology habitaUwetlands

loss) 1 March 08 Taylor Damage Reports 28 April 08 Crawford Damage Assessments

18 Dec 08 Stephen DeLoach (LIDAR amp 13 July 08 Chad Morris (mapping levee structure elevations) heights) 22 Dec 08 Brian Jarvinen (meteorology amp surge research) 18 Dec 08 Louis Britsch III (geologic and 11 July 08 John Day and Gary Shaffer (MRGO geomorphic development) effect on wetlands land loss)

27 Jan 09 Day and Shaffer

B In re Katrina Canal Breaches Consolidated Litigation (MRGO) No 05-4182 (EDLa)

The MRGO category of the Katrina litigation is a consolidated class action dealing with issues ofliability for damages from flooding related to the MRGO Most of the liability issues were tried in the lead test case of Robinson In September of this year the final liability issue concerning liability from flooding related to the two IHNC floodwall breaches one of which is the subject of this nomination will be tried The United States appears as a codefendant in this

2

CECC SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (lHNC)

trial with the Government contractor Washington Group International (WGI) The expert reports submitted in the upcoming trial evidence the disagreement within the engineering and scientific communities as to the cause of the flood wall breaches and damages resulting from Katrina These reports are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES WGI (govt contractor) PLAINTIFFS 8 March 12 Thomas Brandon 12 March 12 Francisco 1 Feb 12 Robert Bea Diego (assessment of failure) Silva-Tulia (assessment of Cobos-Roa Rune Storesund

failure) and Xavier Vera (assessment of failure) 11 April 12 Robert Bea Diego Cobos-Roa Rune Storesund and Xavier Vera Rebuttal Report

8 March 12 Joseph B 5 Jan 121 David Rogers Dunbar (geological site

21 March 11 Robert A reports (site characterization)

characterization) Dalrymple (hurricane effects storm surge and flooding)

9 March 12 Patrick C Lucia 25 July 11 Chad Morris (compliance with standard of

9 March 12 David Sykora (standard of care review) (survey and spatial data)

care)

12 March 12 W Allen Marr 11 March 12 Brad James and (evaluation of levee failure) Nicoli Ames IHNC North

Breach Piling Failure Analysis

9 March 12 Timothy D Stark Scott Taylor (loss report) (effects of excavations on

31 Oct 11 James R Danner J r (property damage

floodwall breaches) appraisals) 7 March 12 Thomas Naymik 26 July 11 John Crawford (hydraulic conductivity of

7 Dec 11 Holly Sharp (flood damage assessment)

subsurface deposits and continuity) 18 March 12 Steven D

(economic loss analyses)

7 Nov 11 Jean-Prieur Du Fitzgerald (interior flooding Plessis (residence repair cost analysis) estimate)

14 Nov 11 Karl G Schneider (residence contents report) 3 Nov 11 Michael W Truax Sr (market value appraisals)

C In re Katrina Canal Breaches Consolidated Litigation (Levee) No 05-4182 (EDLa)

The Levee category of the Katrina litigation is a consolidated class action dealing with issues of liability for damages from flooding related to the New Orleans Outfall Canals

3

CECC SUBJECT Leveesorg s Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

including the 17th Street Canal one of the sites that is the subject of the nomination The expelt repOlis generated in this case leading up to the dismissal of all allegations against the United States are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES PLAINTIFFS 10 September 07 Paul Kuhlmeier 22 July 07 Robert Bea Declaration (hydrology) (causation amp hydrology)

29 August 07 Robert A Dalrymple 26 April 06 Hector Pazos Preliminary Report PhD (causation) (London Ave Canal failure) 10 September 2007 Eric Nelson 27 July 07 Michael Sartisky PhD (damage to (hurricane damage assessments culture) 23 August 07 James R Danner (hurricane damage repOlis) 29 August 07 Kenoy D Yandell 30 July 07 John A Kilpatrick PhD (commonality of injury and damage) (commonality of injury and damage)

II Misrepresentation of the trial court decisions

The nomination misrepresents the decisions of the trial court in the Katina litigation in support of the contention that there is a unanimous consensus

A In re Katrina Canal Breaches Consolidated Litigation (Levee) 533 FSupp2d 615 (EDLa 2008)

The trial court dismissed all allegations against the United States regarding the 17th Street Canal breach site on January 30 2008 which decision was upheld by the United States Fifth Circuit Cowi of Appeals on March 2 2012 The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for defects in the design of the concrete I-wall floodwall constructed in the earthen levees of the 1 i h Street Canal Nomination at 24 Instead the trial court held that the suit was barred and granted the United States Motion to Dismiss Any statements by the district court concerning liability were mere dicta and do not reflect a formal finding by the district court

B In re Katrina Canal Breaches Consolidated Litigation (Robinson) 647 FSupp2d 644 735 (EDLa 2009)

The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for the flooding from the two east IHNC levee breaches (and dozens of others) because the federal agency failed to properly maintain the Mississippi River Gulf Outlet (MRGO) Nomination at 24 The trial court in fact held just the opposite In fact the district court specifically rejected this causal link to plaintiffs damage Although plaintiffs argue in their brief that the 10 feet of water that impacted the Franz s house is all substantially attributable

to the MRGO the Court finds to the contrary Id at 735 Further this contention made in the

4

CECC SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (lHNC)

trial with the Government contractor Washington Group International (WGI) The expert reports submitted in the upcoming trial evidence the disagreement within the engineering and scientific communities as to the cause of the flood wall breaches and damages resulting from Katrina These reports are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES WGI (govt contractor) PLAINTIFFS 8 March 12 Thomas Brandon 12 March 12 Francisco 1 Feb 12 Robert Bea Diego (assessment of failure) Silva-Tulia (assessment of Cobos-Roa Rune Storesund

failure) and Xavier Vera (assessment of failure) 11 April 12 Robert Bea Diego Cobos-Roa Rune Storesund and Xavier Vera Rebuttal Report

8 March 12 Joseph B 5 Jan 121 David Rogers Dunbar (geological site

21 March 11 Robert A reports (site characterization)

characterization) Dalrymple (hurricane effects storm surge and flooding)

9 March 12 Patrick C Lucia 25 July 11 Chad Morris (compliance with standard of

9 March 12 David Sykora (standard of care review) (survey and spatial data)

care)

12 March 12 W Allen Marr 11 March 12 Brad James and (evaluation of levee failure) Nicoli Ames IHNC North

Breach Piling Failure Analysis

9 March 12 Timothy D Stark Scott Taylor (loss report) (effects of excavations on

31 Oct 11 James R Danner J r (property damage

floodwall breaches) appraisals) 7 March 12 Thomas Naymik 26 July 11 John Crawford (hydraulic conductivity of

7 Dec 11 Holly Sharp (flood damage assessment)

subsurface deposits and continuity) 18 March 12 Steven D

(economic loss analyses)

7 Nov 11 Jean-Prieur Du Fitzgerald (interior flooding Plessis (residence repair cost analysis) estimate)

14 Nov 11 Karl G Schneider (residence contents report) 3 Nov 11 Michael W Truax Sr (market value appraisals)

C In re Katrina Canal Breaches Consolidated Litigation (Levee) No 05-4182 (EDLa)

The Levee category of the Katrina litigation is a consolidated class action dealing with issues of liability for damages from flooding related to the New Orleans Outfall Canals

3

CECC SUBJECT Leveesorg s Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

including the 17th Street Canal one of the sites that is the subject of the nomination The expelt repOlis generated in this case leading up to the dismissal of all allegations against the United States are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES PLAINTIFFS 10 September 07 Paul Kuhlmeier 22 July 07 Robert Bea Declaration (hydrology) (causation amp hydrology)

29 August 07 Robert A Dalrymple 26 April 06 Hector Pazos Preliminary Report PhD (causation) (London Ave Canal failure) 10 September 2007 Eric Nelson 27 July 07 Michael Sartisky PhD (damage to (hurricane damage assessments culture) 23 August 07 James R Danner (hurricane damage repOlis) 29 August 07 Kenoy D Yandell 30 July 07 John A Kilpatrick PhD (commonality of injury and damage) (commonality of injury and damage)

II Misrepresentation of the trial court decisions

The nomination misrepresents the decisions of the trial court in the Katina litigation in support of the contention that there is a unanimous consensus

A In re Katrina Canal Breaches Consolidated Litigation (Levee) 533 FSupp2d 615 (EDLa 2008)

The trial court dismissed all allegations against the United States regarding the 17th Street Canal breach site on January 30 2008 which decision was upheld by the United States Fifth Circuit Cowi of Appeals on March 2 2012 The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for defects in the design of the concrete I-wall floodwall constructed in the earthen levees of the 1 i h Street Canal Nomination at 24 Instead the trial court held that the suit was barred and granted the United States Motion to Dismiss Any statements by the district court concerning liability were mere dicta and do not reflect a formal finding by the district court

B In re Katrina Canal Breaches Consolidated Litigation (Robinson) 647 FSupp2d 644 735 (EDLa 2009)

The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for the flooding from the two east IHNC levee breaches (and dozens of others) because the federal agency failed to properly maintain the Mississippi River Gulf Outlet (MRGO) Nomination at 24 The trial court in fact held just the opposite In fact the district court specifically rejected this causal link to plaintiffs damage Although plaintiffs argue in their brief that the 10 feet of water that impacted the Franz s house is all substantially attributable

to the MRGO the Court finds to the contrary Id at 735 Further this contention made in the

4

CECC SUBJECT Leveesorg s Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

including the 17th Street Canal one of the sites that is the subject of the nomination The expelt repOlis generated in this case leading up to the dismissal of all allegations against the United States are listed in the following chart by party expert and area of expertise with the reports in bold of the Plaintiffs experts upon which the assumptions in the nomination are based and the reports of the United States and WGI which reach contrary conclusions

UNITED STATES PLAINTIFFS 10 September 07 Paul Kuhlmeier 22 July 07 Robert Bea Declaration (hydrology) (causation amp hydrology)

29 August 07 Robert A Dalrymple 26 April 06 Hector Pazos Preliminary Report PhD (causation) (London Ave Canal failure) 10 September 2007 Eric Nelson 27 July 07 Michael Sartisky PhD (damage to (hurricane damage assessments culture) 23 August 07 James R Danner (hurricane damage repOlis) 29 August 07 Kenoy D Yandell 30 July 07 John A Kilpatrick PhD (commonality of injury and damage) (commonality of injury and damage)

II Misrepresentation of the trial court decisions

The nomination misrepresents the decisions of the trial court in the Katina litigation in support of the contention that there is a unanimous consensus

A In re Katrina Canal Breaches Consolidated Litigation (Levee) 533 FSupp2d 615 (EDLa 2008)

The trial court dismissed all allegations against the United States regarding the 17th Street Canal breach site on January 30 2008 which decision was upheld by the United States Fifth Circuit Cowi of Appeals on March 2 2012 The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for defects in the design of the concrete I-wall floodwall constructed in the earthen levees of the 1 i h Street Canal Nomination at 24 Instead the trial court held that the suit was barred and granted the United States Motion to Dismiss Any statements by the district court concerning liability were mere dicta and do not reflect a formal finding by the district court

B In re Katrina Canal Breaches Consolidated Litigation (Robinson) 647 FSupp2d 644 735 (EDLa 2009)

The nomination falsely represents that the trial court held the US Army Corps of Engineers responsible for the flooding from the two east IHNC levee breaches (and dozens of others) because the federal agency failed to properly maintain the Mississippi River Gulf Outlet (MRGO) Nomination at 24 The trial court in fact held just the opposite In fact the district court specifically rejected this causal link to plaintiffs damage Although plaintiffs argue in their brief that the 10 feet of water that impacted the Franz s house is all substantially attributable

to the MRGO the Court finds to the contrary Id at 735 Further this contention made in the

4

CECC SUBJECT Leveesorgs Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

nomination is contradicted by the testimony of the very plaintiffs expert cited extensively

throughout the nomination in support of the exceptional significance of the sites Plaintiffs

contended that the MRGO was a substantial factor in the breaching of the IHNC floodwalls

This contention is directly contradicted by the unequivocal testimony of plaintiffs own expert Dr Robert Bea Id

III One-sided reliance on opinions of Katrina plaintiffs expert witnesses

The nomination cites extensively to Katrina plaintiffs expert witnesses - Bea Cobos-Roa and van Heerden - to support the assumptions made on the legal issues of causation and fault relating to the engineering and the breaching of the levees and flood walls that occurred during Hurricane Katrina in 2005

a Footnote number 1 to the nomination is a citation to a report co-authored by Dr Robert Bea and Diego Cobos-Roa graduate student regarding the IHNC breaches http wwwejgecoml2008Ppr0893Ppr0893wpdf That same report is subsequently footnoted

5 times throughout the nomination document to establish the exceptional significance of the breach sites The first and third references contained in the cited and footnoted report are to Bea and Cobos-Roas expert reports in the Katrina litigation The opinions in the cited and

footnoted report are based on and are the same as those for which Dr Bea and Cobos-Roa have been compensated in the litigation All of Dr Beas Katrina Robinson expert reports can be found at http WWkatrinadocscomexperl detailscfme= l

b Footnote number 12 to the nomination is a citation to the Independent Levee Investigation Team Final Report which report Dr Robert Bea and Ray M Seed co-authored and of which team Dr Bea is the chair httpwwwceberkeleyedulprojectsneworieans That same report is subsequently footnoted 2 times

c Footnote number 27 to the nomination is a citation to the book co-authored by Ivor van Heerden Van Heerden is another Katrina expert witness who co-authored one of many expert reports that can be found at httpwwwkatrinadocscomreportcfmr=16 and upon which Dr Bea relies

Nowhere however is the possibility of bias and self-interest on the parts of these compensated plaintiffs witnesses acknowledged The existence of opposing opinions and expert witnesses is not even mentioned None of the United States or WGI (government contractor) experts or their reports or analyses are referred to or cited in the nomination The existence of such reports which demonstrate the lack of consensus in the scientific and engineering communities is not

acknowledged

5

CECC SUBJECT Leveesorg s Nomination of New Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach of the Inner Harbor Navigation Canal (IHNC)

IV Challenged assumptions that underlie the nomination

The nomination represents as facts many issues which are in truth in dispute and does so by relying on the opinions and reports authored by Katrina plaintiffs experts Dr Robert Bea

Ivor van Heerden and Diego Cobos-Roa For instance the nomination represents that the work performed by WGI the government contractor in the vicinity of the IHNC breaches

compromised the stability of the floodwalls Nomination at 18 This is the disputed issue of

material fact which will be the subject of the upcoming In re Katrina Canal Breaches

Consolidated Litigation (MRGO) No 05-4182 (EDLa) September 102012 trial The

assumptions and expel1 opinion underlying the nominations treatment of the IHNC breach site

are vigorously disputed and challenged as can be seen by reference to the United States defense and expert opinion that follows

A Motions challenging Dr Bea and Cobos-Roas testimony and opinion

Dr Bea and Cobos-Roas opinions as set forth in the reports referenced in the chart

contained in LB above are currently the subject of motions regarding their credibility and utility

before the federal district court WGIs attorney Bill Treeby has submitted for the Keepers

consideration the WGI Motion to Exclude Testimony and Opinions of Dr Robert Glenn Bea

filed with the court on April 30 2012 In the WGI Reply Memorandum filed in support of that motion WGI argues that Dr Robert Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk science for recognized geotechnical engineering principles

Reply Memorandum at 1 filed May 30 2012 (Enclosure 1) Similar uS motions attacking the credibility and utility of Dr Bea s reports and opinions have been filed and demonstrate that there is no consensus in the scientific and engineering communities nor in the courts on the

opinions the nomination document presents as established fact

B W Allen Marr PhD PE NAE

This United States expert has reviewed Dr Beas IHNC breach site opinion in the Independent Levee Investigation Team (IUT) Final Report and in Dr Bea and Cobos-Roa s

expert reports and finds the analyses to be unreliable and further that there is no conceivable way that Dr Bea and Cobos-Roa s theory of fail ure could occur March 12 2012 Expert Report at 60-68 (Enclosure 2)

C Timothy D Stark PhD PE DGE

This United States expert has reviewed Dr Bea s IHNC breach site opinions contained in Dr Bea and Cobos-Roa s reports and in Dr Beas testimony and finds that some of the assumptions

6

CECC SUBJECT Leveesorgs Nomination ofNew Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach ofthe Inner Harbor Navigation Canal (IHNC)

made are inconsistent with prior testimony and reports certain contentions are dubious and that there is no potential for the contentions that Dr Bea postulates led to the failure ofthe IHNC

floodwalls This expert further concludes that WGIs work did not cause the failure of the IHNC

floodwalls March 9 2012 Expert Report at 220-235 and 254 (Enclosure 3)

D Dr Thomas L Brandon PE

This United States expert has reviewed Dr Beas IHNC breach site opinions in the IUT Final Report and in Dr Bea and Cobos-Roas reports and concludes that WGIs site-clearing activities did not cause or contribute in any way to the breaches in the floodwall March 8 2012 Expert Report at 44 (Enclosure 4)

E Joseph B Dunbar PhD RPG

This United States expert has reviewed Dr Beas IHNC breach site opinions contained in Dr Bea and Cobos-Roas reports and concludes that Dr Beas opinion regarding underseepage as a mechanism of floodwall failure is unsupported by the physical and stratigraphic evidence March 8 2012 Expert Report at 1-2 (Enclosure 5)

V Conclusion

For the reasons set forth above the US Army Corps of Engineers believes that the Leveesorg nomination is not objective adequately documented or technically and professionally correct and sufficient The nomination documents fails to establish that the two nominated sites meet Criteria Consideration G for exceptional importance based on the opinions upon which the document relies The mechanism of the Katrina levee and flood wall breaches is vigorously disputed before the various federal courts There is no consensus in the engineering and scientific communities contrary to the representations in the nomination document Because the assumptions and representations underlying the nomination are incorrect and one-sided this nomination document is deficient and fails to establish the exceptional importance of the two sites

I appreciate this opportunity to respond to your request on this nomination Should you need to discuss this further please do not hesitate to contact me at (202) 761-8545

Enclosures MARTIN R COHEN Assistant Chief Counsel for Litigation

7

CECC SUBJECT Leveesorgs Nomination ofNew Orleans Levee Breach Sites - 17th Street Canal and East Side North Breach ofthe Inner Harbor Navigation Canal (IHNC)

made are inconsistent with prior testimony and reports certain contentions are dubious and that there is no potential for the contentions that Dr Bea postulates led to the failure ofthe IHNC

floodwalls This expert further concludes that WGIs work did not cause the failure of the IHNC

floodwalls March 9 2012 Expert Report at 220-235 and 254 (Enclosure 3)

D Dr Thomas L Brandon PE

This United States expert has reviewed Dr Beas IHNC breach site opinions in the IUT Final Report and in Dr Bea and Cobos-Roas reports and concludes that WGIs site-clearing activities did not cause or contribute in any way to the breaches in the floodwall March 8 2012 Expert Report at 44 (Enclosure 4)

E Joseph B Dunbar PhD RPG

This United States expert has reviewed Dr Beas IHNC breach site opinions contained in Dr Bea and Cobos-Roas reports and concludes that Dr Beas opinion regarding underseepage as a mechanism of floodwall failure is unsupported by the physical and stratigraphic evidence March 8 2012 Expert Report at 1-2 (Enclosure 5)

V Conclusion

For the reasons set forth above the US Army Corps of Engineers believes that the Leveesorg nomination is not objective adequately documented or technically and professionally correct and sufficient The nomination documents fails to establish that the two nominated sites meet Criteria Consideration G for exceptional importance based on the opinions upon which the document relies The mechanism of the Katrina levee and flood wall breaches is vigorously disputed before the various federal courts There is no consensus in the engineering and scientific communities contrary to the representations in the nomination document Because the assumptions and representations underlying the nomination are incorrect and one-sided this nomination document is deficient and fails to establish the exceptional importance of the two sites

I appreciate this opportunity to respond to your request on this nomination Should you need to discuss this further please do not hesitate to contact me at (202) 761-8545

Enclosures MARTIN R COHEN Assistant Chief Counsel for Litigation

7

ENCLOSURE 1

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 1 of 38

UNITED STATES DISTRICT COURT

EASTERN DJSTRICT OF LOUISIANA

IN RE KATRINA CANAL BREACHES CIVIL ACTION CONSOLIDATED LITIGATION

NO 05-4182

PERT A INS TO MRGO SECTION K (2) Armstrong No 10-866 JUDGE DUVAL

MAGISTRATE WILKINSON

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

William D Treeby 12901 James C Gulotta Jr 6590 Heather S Lonian 29956 STONE PIGMAN W ALTHER WITTMANN LLC 546 Carondelet Street New Orleans Louisiana 70130 Telephone (504) 581-3200 Facsimile (504) 581-3361

Adrian Wager-Zito Debra S Clayman JONES DAY

51 Louisiana Avenue NW Washington DC 20001-2113 Telephone (202) 879-3891 Facsimile (202) 626-1700

Attorneysfor Washington Group International Inc

1095224v I

Case 2middot05-cv-04182-SRO-JCW Document 20865-2 Filed 0530112 Page 2 of 38

Table of Contents

Appendix of Exhibits ii

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE 2

II THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION PROGRAM DR BEAS CRITICAL BEST ESTTMATES OF PERMEABILITY ARE SHOWN TO BE A SMOKE SCREEN 4

111 DR BEAS CROSS-SECTION FACTS ARE STILL NON-EXISTENT 7

A North Breach Case I Cross-Sections 7

B North Breach Case 2 Cross-Sections 10

I Borehole 81 A is not representative of soi I conditions at the North Breach 10

2 Twenty-foot-deep shell fill feature shown in Dr Beas cross-sections did not exist pre-Katrina 11

C South Breach Case I Cross-Sections J3

I Dr Bea modeled a deep backfilled excavation next to the South Breach that did not exist prior to Katrina 13

2 The permeability value that Dr Bea assigned to the backfill in his South Breach Case 1 cross-sections is not consistent with the backfill that WGI used in the EBIA lS

D South Breach Case 2 Cross-Sections 16

I Dr Beas assumption that WGI excavated a deep utility trench in the vicinity of the South Breach is belied by the record evidence 16

2 Dr Beas two-dimensional modeling of the South Breach Case 2 cross-sections render his analyses wholly unreliable 17

E So-Called Near Breach Case I Cross-Sections 18

TV DR BEAS REAL WORLD WAS NOT IN THE LOWER NINTH WARD-HIS EXPLANATIONS FOR COMPRESSIBILITY ARE MERE SMOKESCREENS TO DIVERT ATTENTION FROM HIS FLA WED ANALYSES 20

A Dr Beas Dilatational Wave Velocity Theory Has No Bearing on this Case and Should be Tgnored 20

I Dilatational Wave Velocity Was Contrived by Dr Bea Only Recently as a Last-Ditch Effort to Close Gaps in His Analyses and Mislead Or Even Deceive the Court 21

2 Dr Beas Alleged Dilatational Wave Velocity Value Does Not Apply To Events Like The Katrina Storm Surge But Rather To A Dynamic Event Such As A Nuclear Explosion Or An Earthquake And Has Nothing To Do With The Behavior Of The Organic Clay Layer At The EBTA During Katrina 24

- i shyI0952Z4v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 3 of 38

Table of Contents

( continued)

B Dr Beas Alleged Transient + Steady Flow Analysis Is Not Supported by the Facts and Is Contrary to Accepted Geotechnical Science 26

C Lambe and Whitman and SEEPW in No Way Validate Dr Beas Analyses 28

V CONCLUSION 32

- ii shy

1095224v I

Case 205-cv-04 182-SRD-JCW Document 20865-2 Filed 053012 Page 4 of 38

Appendix of Exhibits

Appendix No

Exhibit 26 to Deposition of Dr Robel1 Bea 39

Agreement with Fugro Consultants Inc dated 62020 I I 40

Trial Transcript in BARGE 7820 10 (afternoon session) excerpts 41

Dr Robert Beas Technical Report III in Robinson excerpts 42

Trial Transcript in BARGE 782010 (morning session) excerpts 43

IPET Repol1 Volume V Appendix 17 (2009) excerpts 44

Deposition Transcript of Chad Morris 392012 excerpts 45

Deposition Transcript of Dr 1 David Rogers 3162012 (Vol I) excerpts 46

Expert Report of Dr J David Rogers dated 1152012 excerpts 47

Deposition Transcript of Dr Thomas L Brandon 4132012 excerpts 48

Design Mem No4 Florida Ave Complex June 1980 49

Deposition Transcript of Dr 1 David Rogers 3172012 (Vol 2) excerpts 50

Expert Report of Dr Timothy Stark dated 312012 excerpts 51

WG ls Photographs of Gas Line Removal 52

MMG Boring Log (71 G) 53

Borrow Pit Dri I ing Report June 200 I excerpt 54

May 2 2002 Memo from Engg Division 55

Expert Report of Dr Francisco Silva-Tulla 3 122012 excerpt 56

Declaration of Dr Francisco Silva-Tulia dated 5302012 57

The Response ofSoils to Dynamic Loads Whitman (1970) excerpt 58

Soil Mechanics Lambe amp Whitman (1969) excerpts 59

Handbook ofPhysical Constants Clark (1966) excerpt 60

Soil Mechanics in Engineering Practice Terzaghi amp Peck (1996) excerpt 61

SEEPW Manual (2009) excerpt 62

Declaration of Dr T William Lambe dated 5302012 63

- III shyI095224v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 1 of 38

UNITED STATES DISTRICT COURT

EASTERN DJSTRICT OF LOUISIANA

IN RE KATRINA CANAL BREACHES CIVIL ACTION CONSOLIDATED LITIGATION

NO 05-4182

PERT A INS TO MRGO SECTION K (2) Armstrong No 10-866 JUDGE DUVAL

MAGISTRATE WILKINSON

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

William D Treeby 12901 James C Gulotta Jr 6590 Heather S Lonian 29956 STONE PIGMAN W ALTHER WITTMANN LLC 546 Carondelet Street New Orleans Louisiana 70130 Telephone (504) 581-3200 Facsimile (504) 581-3361

Adrian Wager-Zito Debra S Clayman JONES DAY

51 Louisiana Avenue NW Washington DC 20001-2113 Telephone (202) 879-3891 Facsimile (202) 626-1700

Attorneysfor Washington Group International Inc

1095224v I

Case 2middot05-cv-04182-SRO-JCW Document 20865-2 Filed 0530112 Page 2 of 38

Table of Contents

Appendix of Exhibits ii

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE 2

II THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION PROGRAM DR BEAS CRITICAL BEST ESTTMATES OF PERMEABILITY ARE SHOWN TO BE A SMOKE SCREEN 4

111 DR BEAS CROSS-SECTION FACTS ARE STILL NON-EXISTENT 7

A North Breach Case I Cross-Sections 7

B North Breach Case 2 Cross-Sections 10

I Borehole 81 A is not representative of soi I conditions at the North Breach 10

2 Twenty-foot-deep shell fill feature shown in Dr Beas cross-sections did not exist pre-Katrina 11

C South Breach Case I Cross-Sections J3

I Dr Bea modeled a deep backfilled excavation next to the South Breach that did not exist prior to Katrina 13

2 The permeability value that Dr Bea assigned to the backfill in his South Breach Case 1 cross-sections is not consistent with the backfill that WGI used in the EBIA lS

D South Breach Case 2 Cross-Sections 16

I Dr Beas assumption that WGI excavated a deep utility trench in the vicinity of the South Breach is belied by the record evidence 16

2 Dr Beas two-dimensional modeling of the South Breach Case 2 cross-sections render his analyses wholly unreliable 17

E So-Called Near Breach Case I Cross-Sections 18

TV DR BEAS REAL WORLD WAS NOT IN THE LOWER NINTH WARD-HIS EXPLANATIONS FOR COMPRESSIBILITY ARE MERE SMOKESCREENS TO DIVERT ATTENTION FROM HIS FLA WED ANALYSES 20

A Dr Beas Dilatational Wave Velocity Theory Has No Bearing on this Case and Should be Tgnored 20

I Dilatational Wave Velocity Was Contrived by Dr Bea Only Recently as a Last-Ditch Effort to Close Gaps in His Analyses and Mislead Or Even Deceive the Court 21

2 Dr Beas Alleged Dilatational Wave Velocity Value Does Not Apply To Events Like The Katrina Storm Surge But Rather To A Dynamic Event Such As A Nuclear Explosion Or An Earthquake And Has Nothing To Do With The Behavior Of The Organic Clay Layer At The EBTA During Katrina 24

- i shyI0952Z4v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 3 of 38

Table of Contents

( continued)

B Dr Beas Alleged Transient + Steady Flow Analysis Is Not Supported by the Facts and Is Contrary to Accepted Geotechnical Science 26

C Lambe and Whitman and SEEPW in No Way Validate Dr Beas Analyses 28

V CONCLUSION 32

- ii shy

1095224v I

Case 205-cv-04 182-SRD-JCW Document 20865-2 Filed 053012 Page 4 of 38

Appendix of Exhibits

Appendix No

Exhibit 26 to Deposition of Dr Robel1 Bea 39

Agreement with Fugro Consultants Inc dated 62020 I I 40

Trial Transcript in BARGE 7820 10 (afternoon session) excerpts 41

Dr Robert Beas Technical Report III in Robinson excerpts 42

Trial Transcript in BARGE 782010 (morning session) excerpts 43

IPET Repol1 Volume V Appendix 17 (2009) excerpts 44

Deposition Transcript of Chad Morris 392012 excerpts 45

Deposition Transcript of Dr 1 David Rogers 3162012 (Vol I) excerpts 46

Expert Report of Dr J David Rogers dated 1152012 excerpts 47

Deposition Transcript of Dr Thomas L Brandon 4132012 excerpts 48

Design Mem No4 Florida Ave Complex June 1980 49

Deposition Transcript of Dr 1 David Rogers 3172012 (Vol 2) excerpts 50

Expert Report of Dr Timothy Stark dated 312012 excerpts 51

WG ls Photographs of Gas Line Removal 52

MMG Boring Log (71 G) 53

Borrow Pit Dri I ing Report June 200 I excerpt 54

May 2 2002 Memo from Engg Division 55

Expert Report of Dr Francisco Silva-Tulla 3 122012 excerpt 56

Declaration of Dr Francisco Silva-Tulia dated 5302012 57

The Response ofSoils to Dynamic Loads Whitman (1970) excerpt 58

Soil Mechanics Lambe amp Whitman (1969) excerpts 59

Handbook ofPhysical Constants Clark (1966) excerpt 60

Soil Mechanics in Engineering Practice Terzaghi amp Peck (1996) excerpt 61

SEEPW Manual (2009) excerpt 62

Declaration of Dr T William Lambe dated 5302012 63

- III shyI095224v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 2middot05-cv-04182-SRO-JCW Document 20865-2 Filed 0530112 Page 2 of 38

Table of Contents

Appendix of Exhibits ii

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE 2

II THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION PROGRAM DR BEAS CRITICAL BEST ESTTMATES OF PERMEABILITY ARE SHOWN TO BE A SMOKE SCREEN 4

111 DR BEAS CROSS-SECTION FACTS ARE STILL NON-EXISTENT 7

A North Breach Case I Cross-Sections 7

B North Breach Case 2 Cross-Sections 10

I Borehole 81 A is not representative of soi I conditions at the North Breach 10

2 Twenty-foot-deep shell fill feature shown in Dr Beas cross-sections did not exist pre-Katrina 11

C South Breach Case I Cross-Sections J3

I Dr Bea modeled a deep backfilled excavation next to the South Breach that did not exist prior to Katrina 13

2 The permeability value that Dr Bea assigned to the backfill in his South Breach Case 1 cross-sections is not consistent with the backfill that WGI used in the EBIA lS

D South Breach Case 2 Cross-Sections 16

I Dr Beas assumption that WGI excavated a deep utility trench in the vicinity of the South Breach is belied by the record evidence 16

2 Dr Beas two-dimensional modeling of the South Breach Case 2 cross-sections render his analyses wholly unreliable 17

E So-Called Near Breach Case I Cross-Sections 18

TV DR BEAS REAL WORLD WAS NOT IN THE LOWER NINTH WARD-HIS EXPLANATIONS FOR COMPRESSIBILITY ARE MERE SMOKESCREENS TO DIVERT ATTENTION FROM HIS FLA WED ANALYSES 20

A Dr Beas Dilatational Wave Velocity Theory Has No Bearing on this Case and Should be Tgnored 20

I Dilatational Wave Velocity Was Contrived by Dr Bea Only Recently as a Last-Ditch Effort to Close Gaps in His Analyses and Mislead Or Even Deceive the Court 21

2 Dr Beas Alleged Dilatational Wave Velocity Value Does Not Apply To Events Like The Katrina Storm Surge But Rather To A Dynamic Event Such As A Nuclear Explosion Or An Earthquake And Has Nothing To Do With The Behavior Of The Organic Clay Layer At The EBTA During Katrina 24

- i shyI0952Z4v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 3 of 38

Table of Contents

( continued)

B Dr Beas Alleged Transient + Steady Flow Analysis Is Not Supported by the Facts and Is Contrary to Accepted Geotechnical Science 26

C Lambe and Whitman and SEEPW in No Way Validate Dr Beas Analyses 28

V CONCLUSION 32

- ii shy

1095224v I

Case 205-cv-04 182-SRD-JCW Document 20865-2 Filed 053012 Page 4 of 38

Appendix of Exhibits

Appendix No

Exhibit 26 to Deposition of Dr Robel1 Bea 39

Agreement with Fugro Consultants Inc dated 62020 I I 40

Trial Transcript in BARGE 7820 10 (afternoon session) excerpts 41

Dr Robert Beas Technical Report III in Robinson excerpts 42

Trial Transcript in BARGE 782010 (morning session) excerpts 43

IPET Repol1 Volume V Appendix 17 (2009) excerpts 44

Deposition Transcript of Chad Morris 392012 excerpts 45

Deposition Transcript of Dr 1 David Rogers 3162012 (Vol I) excerpts 46

Expert Report of Dr J David Rogers dated 1152012 excerpts 47

Deposition Transcript of Dr Thomas L Brandon 4132012 excerpts 48

Design Mem No4 Florida Ave Complex June 1980 49

Deposition Transcript of Dr 1 David Rogers 3172012 (Vol 2) excerpts 50

Expert Report of Dr Timothy Stark dated 312012 excerpts 51

WG ls Photographs of Gas Line Removal 52

MMG Boring Log (71 G) 53

Borrow Pit Dri I ing Report June 200 I excerpt 54

May 2 2002 Memo from Engg Division 55

Expert Report of Dr Francisco Silva-Tulla 3 122012 excerpt 56

Declaration of Dr Francisco Silva-Tulia dated 5302012 57

The Response ofSoils to Dynamic Loads Whitman (1970) excerpt 58

Soil Mechanics Lambe amp Whitman (1969) excerpts 59

Handbook ofPhysical Constants Clark (1966) excerpt 60

Soil Mechanics in Engineering Practice Terzaghi amp Peck (1996) excerpt 61

SEEPW Manual (2009) excerpt 62

Declaration of Dr T William Lambe dated 5302012 63

- III shyI095224v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 053012 Page 3 of 38

Table of Contents

( continued)

B Dr Beas Alleged Transient + Steady Flow Analysis Is Not Supported by the Facts and Is Contrary to Accepted Geotechnical Science 26

C Lambe and Whitman and SEEPW in No Way Validate Dr Beas Analyses 28

V CONCLUSION 32

- ii shy

1095224v I

Case 205-cv-04 182-SRD-JCW Document 20865-2 Filed 053012 Page 4 of 38

Appendix of Exhibits

Appendix No

Exhibit 26 to Deposition of Dr Robel1 Bea 39

Agreement with Fugro Consultants Inc dated 62020 I I 40

Trial Transcript in BARGE 7820 10 (afternoon session) excerpts 41

Dr Robert Beas Technical Report III in Robinson excerpts 42

Trial Transcript in BARGE 782010 (morning session) excerpts 43

IPET Repol1 Volume V Appendix 17 (2009) excerpts 44

Deposition Transcript of Chad Morris 392012 excerpts 45

Deposition Transcript of Dr 1 David Rogers 3162012 (Vol I) excerpts 46

Expert Report of Dr J David Rogers dated 1152012 excerpts 47

Deposition Transcript of Dr Thomas L Brandon 4132012 excerpts 48

Design Mem No4 Florida Ave Complex June 1980 49

Deposition Transcript of Dr 1 David Rogers 3172012 (Vol 2) excerpts 50

Expert Report of Dr Timothy Stark dated 312012 excerpts 51

WG ls Photographs of Gas Line Removal 52

MMG Boring Log (71 G) 53

Borrow Pit Dri I ing Report June 200 I excerpt 54

May 2 2002 Memo from Engg Division 55

Expert Report of Dr Francisco Silva-Tulla 3 122012 excerpt 56

Declaration of Dr Francisco Silva-Tulia dated 5302012 57

The Response ofSoils to Dynamic Loads Whitman (1970) excerpt 58

Soil Mechanics Lambe amp Whitman (1969) excerpts 59

Handbook ofPhysical Constants Clark (1966) excerpt 60

Soil Mechanics in Engineering Practice Terzaghi amp Peck (1996) excerpt 61

SEEPW Manual (2009) excerpt 62

Declaration of Dr T William Lambe dated 5302012 63

- III shyI095224v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 205-cv-04 182-SRD-JCW Document 20865-2 Filed 053012 Page 4 of 38

Appendix of Exhibits

Appendix No

Exhibit 26 to Deposition of Dr Robel1 Bea 39

Agreement with Fugro Consultants Inc dated 62020 I I 40

Trial Transcript in BARGE 7820 10 (afternoon session) excerpts 41

Dr Robert Beas Technical Report III in Robinson excerpts 42

Trial Transcript in BARGE 782010 (morning session) excerpts 43

IPET Repol1 Volume V Appendix 17 (2009) excerpts 44

Deposition Transcript of Chad Morris 392012 excerpts 45

Deposition Transcript of Dr 1 David Rogers 3162012 (Vol I) excerpts 46

Expert Report of Dr J David Rogers dated 1152012 excerpts 47

Deposition Transcript of Dr Thomas L Brandon 4132012 excerpts 48

Design Mem No4 Florida Ave Complex June 1980 49

Deposition Transcript of Dr 1 David Rogers 3172012 (Vol 2) excerpts 50

Expert Report of Dr Timothy Stark dated 312012 excerpts 51

WG ls Photographs of Gas Line Removal 52

MMG Boring Log (71 G) 53

Borrow Pit Dri I ing Report June 200 I excerpt 54

May 2 2002 Memo from Engg Division 55

Expert Report of Dr Francisco Silva-Tulla 3 122012 excerpt 56

Declaration of Dr Francisco Silva-Tulia dated 5302012 57

The Response ofSoils to Dynamic Loads Whitman (1970) excerpt 58

Soil Mechanics Lambe amp Whitman (1969) excerpts 59

Handbook ofPhysical Constants Clark (1966) excerpt 60

Soil Mechanics in Engineering Practice Terzaghi amp Peck (1996) excerpt 61

SEEPW Manual (2009) excerpt 62

Declaration of Dr T William Lambe dated 5302012 63

- III shyI095224v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 205-cv-04182-SRD-JCW Document 20865-2 Filecl 053012 Page 5 of 38

REPLY MEMORANDUM TO PLAINTIFFS OPPOSITION TO MOTION TO EXCLUDE TESTIMONY AND OPINIONS OF DR ROBERT GLENN BEA

The Motion before the Court is lot about what caused the North and South

Breaches at the Lower Ninth Ward flood wall The Motion instead asserts that Dr Robert

Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk

science for recognized geotechnical engineering principles The Opposition attempts to change

the subject to deflect attention2 from these shortcomings The Opposition contains no

explanation for Dr Beas substitution of conceptualhypothetical cross sections for carefully

documented pre-Katrina conditions at the East Bank Industrial Area (EBIA) Instead the

Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose

expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to

explain the unheard-of pseudo-scientific jargon engaged in by Dr Bea

There is no doubt that Dr Bea is a practiced forensic engineer Dr Bea has

extensive experience in the offshore oil and gas industry But the statement that Dr Bea had

extensive boots on the ground experience investigating levee failures before becoming

involved with Plaintiffs as an advocate in this case is simply untrue Dr Sea had no levee

failure investigation work prior to Katrina 3 His many publications--of articles papers and

symposium presentations--have involved oil and gas pipelines and offshore platform safety not

levee failures 4 It is a misrepresentation to say that Dr Bea had extensive boots on the ground

experience investigating levee failures

Plaintiffs Opposition To Defendants United States And Washington Group International Incs Motions to Exclude Testimony And Opinions Of Dr Robelt Bea (herein Opposition) at p I

Opposition at p I

WGI Mem Ex 8 Bea Dep Vol I p 46 15-24 and WGI Mem Ex 9 Bea Dep Vol 2 p175 24-176 23 Beas only other levee floodwall or flood control structure ~aiIUle investigations ere on the Upper Mississippi River in 2008 and on the Sacramento River within the four years prior to March 2012

Bea Deposition Vol I p 503-15 Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp 4shy40) Dr Bea onlycaimed that a total of 10 related to tloodwall levee or flood control failures that were published prior to Hurricane Katrina Sea Deposition Vol 1 p 5016-21 p 51I-p 5416 Vol 2 p 78shyp_ 8 15 Ex 39 Exhibit 26 to Dr Beas deposition Vol 2 Dr Bea identitied items 39 76 ti-om pp 4-8 of

- I shy109524v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

- 3 shy1095224 v I

Case 205-cv-04182-SRD-JCW Docurnent 20865-2 Filed 053012 Page 6 of 38

The Oppositions inapposite citation to this COUlts prior opinions in BARGE and

Robinson is similarly inappropriate and unavailing5 In Robinson without WGI present the

Court was not attempting to determine the cause of failure of the IHNCEBIA levees and

floodwalls In BARGE again without WGJ present the COlllt simply determined that the barge

did not contribute to the leveelfloodwall failure 6

Once again WGls motion to exclude the testimony and opinions of Dr Robel1

Glenn Sea is not undertaken lightly--the remedy sought is rarely granted However rare this is

such a case Dr Beas opinions in this case are not supported by facts or by science and should

be excluded

I THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE

Tn a bench trial where the judge acts as both the gatekeeper and finder of fact

the Daubert standards of admissibility of expert testimony must still be met 7 The ultimate

question still is [w]hether an expert will assist the factfinder under Rule 7028 [W]hen the

court sits as trier of fact [it] is then in the best position to know whether expert testimony

would help [it] understand the case9 Only in the latter sense in which the trial judges own

confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a

(continued )

Appendix A to his repOlt under Archival Journals items 13 19 23 36 and 77 liom pp 13-39 of Appendix to his report under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings Technical RepOlts and Alticles in Non-Archival Magazines or Journals Dr Bea also identitied items II 12 and 13 trom Books or Chapters in Books However a review of those materials in fact shows that none of these publications involved failures of levees flood walls or flood control structures

Opposition at pp 1-2 fn 2 Id at pp 4-5

[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach] and [t]he Court will not make findings as to the specific cause(s) for the South Breach 20 I J WL 1792542 at 13 14

Schilder Daily LLC v DeLaval Inc 20 II WL 2634251 at middot2 (D ldaho 75 II) see aso Seaboard Lumber Co v Us 308 F3d 1283 1302 (Fed Cir 2002)

French 1 Allslale fndem Co 637 F Jd 571 578 (5th Cir 20 II) (quoting Mercado v Auslin Police DepI 754 F2d 12661269 (5th Cir 1985))

fd

- 2 shy1095224v I

6

Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 053012 Page 7 of 38

jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

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jurys ability to understand scientitic evidence are Daubert standards considered relaxed lo The

judge is under no duty even in a bench trial to hear scientific evidence at trial that will not assist

him in finding the relevant facts

As a result judges have in fact excluded expert testimony prior to a bench trial

because of the flaws found in a proffered experts methodology I I Should the Coul1 find that Dr

Beas methods are scientifically unreliable the Coul1 has a duty to exclude his opinions and

testimony under Rule 702

Plaintiffs accuse WGI of twisting the Daubert inquiry into a de facto summary

judgment that would dispose of the entire action12 The Court should not avoid a thorough

Daubert inquiry merely because Plaintiffs theory of causation is based on one experts flawed

and inadmissible analysis In Rink v Cheminova Inc the district court was faced with a similar

situation 13 The district coul1 found (and the appellate court affirmed) that the plaintiffs

causation experts methods were unrel iable and his testimony was therefore inadmissible 14 The

court also found that because the plaintiffs other experts relied on the inadmissible repoli their

15 own reports were also unreliable and inadmissible As a result the district court found that

there was no reliable expert evidence of causation 16 Without the expert testimony the

putative class representatives failed to make a sufficient showing for an element on which they

10 See David E lVatson Pe 1 U S 668 F3d 1008 1015 (8th CiT 2011) (When the district court sits as the finder of fact [t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself (quoting In re 211m Pex Plumbing Prods Liab Litig 644 F3d 604 613 (8lh Cir 20(1raquo Thus Courts may relax Dauberts application fo r bench trials Id

II See Johnson v Big Lot Stores Inc 2008 WL 1930681 at 20 (EDLa 42908) 12 Opposition at p I I J3 400 F3d 1286 (II th C ir 2005) 14 Id at pp 1292-94 15 Id at pp 1294-95 16 Id at p 1295

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had the burden of proof I 7 On appeal the appellate court held that the district court properly

granted summary judgment in favor of the defendant I 8

Plaintiffs cannot bear their burden of demonstrating that Dr Beas opinions are

scientifically reliable There is no reason to delay until trial a decision excluding Dr Beas

unfounded opinions

II THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION PROGRAM-----DR BEAS CRITICAL BEST ESTIMATES OF PERMEABILITY ARE SHOWN TO BE A SMOKE SCREEN

The history of Dr Beas changing opinions and the rationale for the joint soils

investigation are relevant to understanding Dr Beas current opinions Plaintiffs in their

Opposition try to rewrite the relevant history For example the Opposition states Dr Rogers

concluded that Fugro and the Defendants elected to ignore the minority of materials within the

borings varied soil and assign an identitication based upon the majority of the material found in

the boring This identification was based upon a standard (ASTM 2487) not included within the

SOp19 That statement is misleading The soils classification standard ASTM 0 2487 was

required by the joint soils investigation program and was explicitly agreed to by PlaintiffsO

Plaintiffs and Dr Rogers have no legitimate cause to complain Further the classifications

applied to the soils in Fugros logs do not affect the analyses of the critical soil properties at issue

in this case Plaintiffs and Defendants experts agree as to the permeability determined by

Fugros testing As Plaintiffs admit determination ofthe soil permeability was the main purpose

of engaging Fugro1

17 d at pp 1295-96 18 d at p 1296 ]9

Opposition at p 7 ~o Ex 40 Agreement with Fugro Consultants Inc by the parties dated June 20 2011 on page 4 of II states

Full Soil Classitication Tests where assigned by the Experts will be performed utilizing the appropriate test procedures including ASTM 02487

21 Opposition at p 7

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Similarly Plaintiffs attempt to distance Dr Bea from the opinions expressed in

the JUT repoI1 22 This is contrary to Dr Beas prior testimony in the BARGE litigation2J and to

claims of his co-leadership of the JUT team and co-authorship of the JLIT report as bases for his

24qualifications to offer an expert opinion in tlris case Dr Bea still cites in his repol1 in tlris

case to the lUT repol1 as a basis for determining his best estimate of the horizontal

conductivity for the marsh layer25

[n their Opposition Plaintiffs refer to a range of permeability values mentioned

by Dr Bea in his prior reports for which he claimed to have considered underseepage effects26

Regardless in vil1ually every repol1 and opinion authored or offered by Dr Bea since 2006 he

has referred to a best estimate for permeability on which he based his reported seepage analysis

results Dr Beas best estimate of the permeability has changed multiple times since 2006

In the very last declaration that he submitted in Robinson (dated January 29

2009) Dr Bea confirmed that he relied on a best estimate of lxl0-J cmsec for the

permeability of the marsh layer27 Further a review of his reports issued in Robinson reveals

that he relied on a permeability of lxlO-J cmsec to model his failure scenario28 It was

supposedly because of the uncertainty of the characteristics of this critical layer that Dr Bea

22 Opposition at p 8 23 A I dont think Ive been criticized J think the independent levee team was correctly appropriately criticized

lor the use of their vel) high water conductivity that we used in stages I and 2 of the IPET -- JUT work

Q And you were co-leader of that team is that fair

A Thats correct

Q At the time that the (LIT team which you were a co-leader of came up with its conclusions regarding seepage and underseepage you were in agreement with those conclusions correct

A Thats correct

Q And at all times when the fLIT team put out a report any portion of its report at the time it was put out you were in agreement with those conclusions fair

A Thats correct

Ex 41 BARGE Transcript 7820 I 0 (atlernoon) at pp 2753 19-2754 14

24 Bea Report at p 5 11 7-8

Bea Repoli at p 72 ~77 26 Opposition at p 10 2 7 WGI Mem Ex 4 Bea Decl]ration in Robinson January 29 2009 at p 132 1182 28 See Ex 42 Technical Report 1II in Robinson at pp 95-99

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Similarly Plaintiffs attempt to distance Dr Bea from the opinions expressed in

the JUT repoI1 22 This is contrary to Dr Beas prior testimony in the BARGE litigation2J and to

claims of his co-leadership of the JUT team and co-authorship of the JLIT report as bases for his

24qualifications to offer an expert opinion in tlris case Dr Bea still cites in his repol1 in tlris

case to the lUT repol1 as a basis for determining his best estimate of the horizontal

conductivity for the marsh layer25

[n their Opposition Plaintiffs refer to a range of permeability values mentioned

by Dr Bea in his prior reports for which he claimed to have considered underseepage effects26

Regardless in vil1ually every repol1 and opinion authored or offered by Dr Bea since 2006 he

has referred to a best estimate for permeability on which he based his reported seepage analysis

results Dr Beas best estimate of the permeability has changed multiple times since 2006

In the very last declaration that he submitted in Robinson (dated January 29

2009) Dr Bea confirmed that he relied on a best estimate of lxl0-J cmsec for the

permeability of the marsh layer27 Further a review of his reports issued in Robinson reveals

that he relied on a permeability of lxlO-J cmsec to model his failure scenario28 It was

supposedly because of the uncertainty of the characteristics of this critical layer that Dr Bea

22 Opposition at p 8 23 A I dont think Ive been criticized J think the independent levee team was correctly appropriately criticized

lor the use of their vel) high water conductivity that we used in stages I and 2 of the IPET -- JUT work

Q And you were co-leader of that team is that fair

A Thats correct

Q At the time that the (LIT team which you were a co-leader of came up with its conclusions regarding seepage and underseepage you were in agreement with those conclusions correct

A Thats correct

Q And at all times when the fLIT team put out a report any portion of its report at the time it was put out you were in agreement with those conclusions fair

A Thats correct

Ex 41 BARGE Transcript 7820 I 0 (atlernoon) at pp 2753 19-2754 14

24 Bea Report at p 5 11 7-8

Bea Repoli at p 72 ~77 26 Opposition at p 10 2 7 WGI Mem Ex 4 Bea Decl]ration in Robinson January 29 2009 at p 132 1182 28 See Ex 42 Technical Report 1II in Robinson at pp 95-99

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suggested in a repoJ1 in Robinson that [f]uture work on the breach site (and non-failure sites)

should be carried out to assess the permeability of this complex deposit 29

Later Dr Bea testified before this Court in BARGE on July 8 20 I 0 that the

borings done at the EBIA prior to that date were sufficient to allow him to characterize the soils

in the vicinity of both the North and South Breaches30 Based on his understanding of the soil

propeJ1ies Dr Bea testified that his best estimate for the marsh layers permeability was

31lxtO-4 emsee

However after the studies conducted by Fugro and analyses performed by Dr

David Rogers Dr Bea now concedes that the best estimate of the permeability of the marsh

layer is lxlO-5 emsec This estimate is the same as the upper bound value for permeability first

estimated by PET in 20063~ and now by WGIs expeJ1s At lxlO-s emsec fPET WGJs and the

Governments current experts all agree that failure could not have occurred as a result of

underseepage33 Dr Beas opinion of course is to the contrary He now is anxious to tell the

Court that he long ago believed that failure caused by underseepage occurred across a range of

permeabilities as low as lxlO-5 emsec His shifting opinions disrespect both the scientitic and

the judicial process in which he has been a prominent participant for over six years

WGIs and the Governments experts have now thoroughly analyzed Dr Beas

work and have determined exactly why permeability that he continues to call a critical

material property does not appear to be critical to Dr Beas analyses after all Defendants

experts discovered the answer to that why It was because Dr Bea consistently and until now

secretly manipulated another essential hydrogeologic property compressibility Dr Beas

29 d at p 67 30 Ex 43 BARGE Transcript 7820 10 (morning) at pp 262623-2627 2 2628 10-14 31 Ex 41 BARGE Transcript 782010 (afternoon) at p 27379-11 32 Ex 44 PET Report Vol V Appendix 17 at p 17-17 33 See id at pp 17-29 to 17-39

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manipulation of compressibility had long ago rendered permeability virtually meaningless to his

incorrect and deceptive analyses

III DR BEAS CROSS-SECTION FACTS ARE STILL NON-EXISTENT

Plaintiffs concede that Dr Beas cross-sections are necessary to demonstrate how

and why the North and South Breaches occurred as well as how and why the floodwall did not

fail at McDonough Marine34 In fact these cross-sections were entered into computer models

by Dr Beas graduate student Mr Cobos-Roa to support Dr Beas hypotheses that the

floodwalls failed due to underseepage Accordingly as Plaintiffs admit the cross-sections

should be reasonable representations of the geotechnical and flood wall conditions that existed

when Hurricane Katrina arrived 35 Nevertheless they suggest despite the lack of any

evidence that they are still looking for and may eventually find something to support Dr Beas

conceptual hypothetical cross-sections and the excavations depicted on the cartoons pictured in

his Expert Report 36 If real evidence existed for these made-up features Plaintiffs expert team

would have found them by now Because no actual facts support these hypothetical cross-

sections Dr Beas opinions are unreliable and should be excluded

A North Breach Case 1 Cross-Sections

In its Memorandum WGI argues that Dr Beas North Breach Case I cross-

sections are unreliable and irrelevant because they model a 25-foot wide x 100-foot long x 15shy

foot deep excavation within sixty feet of the North Breach that undisputedly did not exist before

Katrina7 [n their Opposition Plaintiffs concede that in fact Dr Bea has found no pre-Katrina

evidence-despite having access to thousands of photographs daily reports and work plans

detailing WGIs work in the EB[A-that this fictional excavation actually existed pre-Katrina or

34 Opposition at p 10 35 Id 36 See eg Opposition atpp13 19 37 WOI Mem atpp 16-17 amp Revised Ex 14

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that such an excavation was part of WGIs site clearing operations in the EBIA 38 That lack

should be the end of the COllI1S inquiry39

Instead Plaintiffs attempt to deflect attention away from the fact that Dr Bea

modeled a fabricated excavation at the North Breach by insisting that Dr Bea has pre-Katrina

evidence of other excavations and backfilling activity near the North Breach that WGI

performed 4o Yet as WGI painstakingly detailed in its opening brief (and Plaintiffs do not

dispute) none of these other pre-Katrina excavations on Boland Marine come close to

matching the location and dimensions of the fictitious excavation shown in Dr Beas North

Breach Case I cross-sections41 Thus these other excavations which Dr Bea chose not to

model are wholly irrelevant to determining the reliability of his North Breach Case I cross-

sections and the flow and stability analyses that he ran based on these cross-sections

Plaintiffs next cite to post-Katrina aerial and ground photographs in Dr Beas

Expert Report showing what they describe as unusual holes or significant soil disturbance at

the North Breach42 They claim that Dr Bea used inductive reasoning to conclude that these

unusual holes must be artifacts of WGIs poorly backfilled excavations43 But these post-

Katrina photographs are not evidence that WGI did anything pre-Katrina let alone excavate and

backfill a 100-foot long 15-foot deep hole within sixty teet of the North Breach as Dr Bea

represents in his North Breach cross-sections Dr Bea admitted as much in his deposition44

Without a shred of evidence to connect photographs of an unusual post-Katrina disturbance near

the North Breach to WGIs undeniably well-documented pre-Katrina excavations on Boland

38 Opposition at p 13 3q

See eg Coffey v Dowley Mfg Inc 187 F Supp 2d 958 974-79 (MD Tenn 2002) (where experts analysis is based on hypotheses and guesstimations that have little grounding in actual physical realities exclusion is warranted under Daubert)

40 Opposition at pp II 13 41

WGI Mem Revised Ex 14 (Evidence Dr Bea Cites In SupPOl1 of North Breach Case I Cross Sections) 4Z

Opposition at pp 11 13 (citing Bea Report at pp 20 24-29 amp App B Fig 3) 43 Opposition at p 12

WGr Mem at p 16 (citing Bea Dep Vol 2 at 113 5-21 )

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that such an excavation was part of WGIs site clearing operations in the EBIA 38 That lack

should be the end of the COllI1S inquiry39

Instead Plaintiffs attempt to deflect attention away from the fact that Dr Bea

modeled a fabricated excavation at the North Breach by insisting that Dr Bea has pre-Katrina

evidence of other excavations and backfilling activity near the North Breach that WGI

performed 4o Yet as WGI painstakingly detailed in its opening brief (and Plaintiffs do not

dispute) none of these other pre-Katrina excavations on Boland Marine come close to

matching the location and dimensions of the fictitious excavation shown in Dr Beas North

Breach Case I cross-sections41 Thus these other excavations which Dr Bea chose not to

model are wholly irrelevant to determining the reliability of his North Breach Case I cross-

sections and the flow and stability analyses that he ran based on these cross-sections

Plaintiffs next cite to post-Katrina aerial and ground photographs in Dr Beas

Expert Report showing what they describe as unusual holes or significant soil disturbance at

the North Breach42 They claim that Dr Bea used inductive reasoning to conclude that these

unusual holes must be artifacts of WGIs poorly backfilled excavations43 But these post-

Katrina photographs are not evidence that WGI did anything pre-Katrina let alone excavate and

backfill a 100-foot long 15-foot deep hole within sixty teet of the North Breach as Dr Bea

represents in his North Breach cross-sections Dr Bea admitted as much in his deposition44

Without a shred of evidence to connect photographs of an unusual post-Katrina disturbance near

the North Breach to WGIs undeniably well-documented pre-Katrina excavations on Boland

38 Opposition at p 13 3q

See eg Coffey v Dowley Mfg Inc 187 F Supp 2d 958 974-79 (MD Tenn 2002) (where experts analysis is based on hypotheses and guesstimations that have little grounding in actual physical realities exclusion is warranted under Daubert)

40 Opposition at pp II 13 41

WGI Mem Revised Ex 14 (Evidence Dr Bea Cites In SupPOl1 of North Breach Case I Cross Sections) 4Z

Opposition at pp 11 13 (citing Bea Report at pp 20 24-29 amp App B Fig 3) 43 Opposition at p 12

WGr Mem at p 16 (citing Bea Dep Vol 2 at 113 5-21 )

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Marine Dr Beas induction is nothing more than an unsupportable hypothesis It certainly is

not evidentiary SUpp011 for cross-sections that purport to be reasonable representations of pre-

Katrina conditions in the EBIA45

To be sure Plaintiffs expert Chad Morris PLS who helped Dr Bea develop

the North Breach Case I cross-sections46 testified that he could not tell if there were any pre-

Katrina excavations within fifty feet of the North Breach from looking at post-Katrina aerial

photographs I dont think [aerial photographs] are the proper tool for that47 And Plaintiffs

expert on pre-Katrina site characterization in the EBIA (who opines at length about WGIs

excavations in the EBIA) testified that he does not know what that particular [excavation] is in

Dr Beas Case I cross-sections48

Finally Plaintiffs rely on the deposition testimony of the governments expert Dr

Thomas Brandon for the proposition that that Court should give Dr Bea a certain amount of

latitude in developing his cross-sections because drawing cross-sections involves engineering

judgment 49 The rest of Dr Brandons testimony on this issue was that although youre

allowed a certain amount of latitude in drawing cross-sections it still is imp0l1ant to look at all

the information youre given 50 For example showing a large backfill [ed] excavation in the

North Breach Case 1-2 cross-section (as Dr Bea did) is a problem when Ive got no evidence

that such an excavation ever existed51

45 See Opposition at p 10 46 Opposition at p 13 47 Ex 45 Morris Dep at pp 193 11-194 15 48

WGI Mem Ex 13 Rogers Dep Vol 2 at pp 248 13-2506 According to Dr Rogers site characterization involves Developing a model for what the underground looks like what the stratigraphy and the layers of soil the geology the hydrology the anthropogenic changes that have occurred limiddotom mankind working in an area altering things excavating filling changing things Ex 46 Rogers Dep Vol I at p 133-11 Plaintiffs assertion that because Dr Rogers did not create the Case I cross-sections it is not surprising that he was unfamiliar with the excavation in Dr Beas Case 1-2 cross-section is wholly unavailing Opposition at p 13 Dr Rogers was retained to know about all the excavations in the EBIA See Ex 47 Rogers Rep at 106- 13 amp 228-37

4Q Opposition at pp 11-12 (citing Brandon Dep at pp 49 55 120)

50 Ex 48 Brandon Dep at pp 12417-1252 51 fd at p 121 4-13

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B North Breach Case 2 Cross-Sections

Dr Beas North Breach Case 2 cross-sections also are unreliable because they

show a 20-foot-deep highly-permeable shell fill polygon at the North Breach which did not

exist pre-Katrina52 Dr Beas only so-called evidence of this deep pervious shell fill feature

comes from the 2001 MMG Boring 81A 53 But as described below Boring 81A is not

representative of the pre-Katrina geotechnical conditions at the North Breach And even if it

was representative Boring 81 A does not support either the depth of this shell fill or Dr Beas

made-up permeability value for this fill which was really a mixture of shell silt and sand

1 Borehole 81A is not representative of soil conditions at the North Breach

MMG Borehole 81 A was located (pre-Katrina) at the northeast corner of Boland

Marine between Surekote Road and the flood wall about 24 feet north of the northern edge of the

north breach 54 The borehole was uniquely situated relative to the other MMG boreholes along

the floodwall because it was drilled into the eastern slope or shoulder of Surekote Road at the

same place where the Road traversed up and over the deeper middot 1980s floodwal1 55 For this

reason the ground surface elevation at borehole 81 A was higher than any other location along

the floodwall at about +785 feet NAVD88(2004 65)56 And there is more shell mixed with silt

and sand in boring 81 A than in any other MMG boring along the floodwal1 57

Nevertheless Plaintiffs argue that because boring 81 A was the closest soil boring

to the breach initiation point (ie the location where the sheet pile initially tore) it is

52 See WGI Mem at p 17-19

53 See Opposition at pp15-18 4

WGI Mem Exs 17 amp 27 Ex 48 Brandon Dep at pp 1053-106J 55

See Ex 47 Rogers Rep at pp 80-82 amp Fig 84 id at p80 amp Fig 86 Undicating shell fill used to build up the side s lopes of Surekote Road in this area)

6 See IPET Pre-Katrina 3Fllnterior (Adjusted) Resolution LiDAR Coverage e03 _29090h Iclimg and e03_29090h I c _hillshadedimg from httpsllipetwesarmy mil

7 See eg WGI Mem Ex 16 (MMG Boring Logs)

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representative of pre-Katrina soil conditions along the entire breach site 58 That argument is

flawed First Dr Bea has no evidence that the anomalous deep shellsiltsand fill in borehole

8 I A-located about twenty-four feet north of the leading edge of the NOl1h Breach-reflects the

soi I conditions at the so-called breach initiation point

Second Dr Beas two-dimensional cross-sections are not being used to model the

breach initiation point As evidenced in the North Breach Case 2 SEEPW output files Dr

Beas two-dimensional flow and stability models assume that this Bea-fabricated 20-foot-deep

shell fill extended infinitely in the north-south direction across the entire length of the NOith

Breach59 Such a feature never existed Boring 79A near the center of the North Breach shows

shellsiltsand fill extending down only six feet 60 And boring 77A at the south end of the North

Breach shows shellsiltsand till extending down only five feet 61 Thus boring 81 A cannot and

does not represent the pre-Katrina soi I conditions across the length of the entire NOlth Breach

site as Dr Beas conceptual cross-sections and seepage models portray

2 Twenty-foot-deep shell fill feature shown in Dr Beas cross-sections did not exist pre-Katrina

But even if boring 81 A was representative of the pre-Katrina soil conditions at the

NOl1h Breach Dr Beas Case 2 cross-sections still must be excluded because boring 81 A does

not show any so-called shell fill that extends as deep as the sheet pile tip62 As WGI pointed

out in its opening brief (and Plaintiffs do not dispute) Boring Log 81 A shows FILL SHELL

with SILTY SAND and FILL SILTY SAND and SHELL down to a depth of only about 16

feet 63 The pre-Katrina elevation at the top of borehole 81 A (along Surekote Road) was

58 Oppo siti on at p 15 59 WGI Mem Ex 15 (Silva-Tulia Decl Ex A at p 1) 60 WGI Mem al p 19 amp Ex 17 (Bol and Marine Borehol e Map) 61 Id 62 See WGI Mem at p 19 63 WGI Mem at pp 18-19 (citing Ex 16 Boring Log for 81 A)

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approximately +785 feet NAVD88(200465)64 Therefore the shellsiltsand fill in 81A

extended down to a pre-Katrina elevation of only -815 feet NA VD88(200465) In other words

the actual shellsiltsand fill ended about 24 feet above the sheet pile tip of the original 1960s

wall and about 1985 feet above the sheet pile tip of the deeper 1980s wal1 65

Yet in the fictional North Breach Case 2 cross-sections contained in his expert

report and entered into his SEEPW computer model Dr Bea convenmiddotiently ignores the actual

facts and instead assumes that shell fill extends from the top of Surekote road all the way down

to the tip of the sheet pile wal1 66 This false assumption assists Dr Beas underseepage-failure-middot

theory but it has absolutely no factual support bull

Additionally Dr Bea models the permeability of the shell fill in his Case 2

cross-sections as having a value of either 001 emsec or 1xlO-2 emsec (North Breach Case 2-1)

or 01 emsec or lxl0-1 emsec (North Breach Case 2_2)deg7 Such high permeability values are

consistent with clean shell fill or shell that is not mixed with any silt or sand68 But as borings

81 A and 79A indicate the fill that Dr Bea modeled in his North Breach Case 2 cross-sections

was not clean or pure shel169 There were si Its and sands mixed in with the shells The mixture

with silt and sand significantly reduces the hydraulic conductivity of the so-called shell fill 7o

Indeed as the Governments experts agree if you have [shells] with silt and silty sand in it

See supra p 10 tn 56

This assumes that the sheet pile of the original 1960s tloodwall extended as Dr Bea contends to -105 feet elevation NA VD88(200465) Bea Repol1 at p 36 ~ 39 It also assumes that the sheet pile tip of the 1980s floodwall was at elevation -28 feet NAVD88(200465) See Bea Rebuttal RepOli at p5 1 9 (top of wall elevation for the entire site was set by Dr Bea at +13 feet) Ex 49 Design Mem No4 Florida A middote Complex June 1980 (as-built des ign for 1980s tloodwall showing length of 41 feet from top of the tloodwall to the sheetpile tip) While WGI has clear evidence that the top of tloodwa ll (and therefore sheet pile tips) was much lower than Dr Bea states even with his higher elevations the lowest shell sandsilt fill was about 24 feet above the sheet pile tips

66 Bea Report App B Figures 12 amp 13 WGI Mem at pp 17-18 67 See WGI Mem Ex 15 (Sil va-Tuila Decl Ex Bat p I) 68 See eg Ex 50 Rogers Dep Vol 2 at p 245 10- 16 Ex 51 Expert Report of T Stark Mar 12 20 I 2 at p

140 69 WGI Mem Ex 16 (Boring Logs 81A 79A) 70

WGI Mem Ex 9 Bea Dep Vol 2 pp 264 14-2657

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youre almost starting at a permeability of ten to the minus three and below71 Thus Dr Beas

unjustifiable lise of permeability values of 1xl02 emsec and lx10-1 emsec for the shell fill

which is at least one or two factors of ten more permeable than existed even at the location of

borehole 81 A makes his cross-sections (and the results of his seepage and stability models based

on those cross-sections) entirely lInreliable72

C South Breach Case 1 Cross-Sections

WGI contended in its Memorandum that Dr Beas South Breach Case 1 cross-

sections are completely unreliable for two reasons First the cross-sections include a 25-foot

wide x SO-foot long x 18-foot deep backfilled excavation at the waterside toe of the levee that

did not exist before Katrina 73 Second Dr Bea modeled the backfill material of this nonshy

existent pre-Katrina excavation with highly permeable till (10 emsec) which WGr did not use

to backtill excavations an)Nhere in the entire EBIA74 Plaintiffs do not deny either of these

assertions in their Opposition brief75 As a result Dr Beas South Breach cross-sections (and the

results of any computer analyses based on those cross-sections) should be excluded

1 Dr Bea modeled a deep backfilled excavation next to the South Breach that did not exist prior to Katrina

Plaintiffs admit that Dr Bea has not found any evidence in all of the extensive

detailed documentation of WGJs work in the EBIA that WGI performed an excavation along

the South Breach with dimensions I ike the one that he modeled in his Case I cross-sections76

71 Ex 48 Brandon Oep at pp 1062-l0718 Ex 51 Stark Report at p 140 (the longest [sic should be lowest] expected value of hydraulic conductivity for a poorly graded sand to a silty sand like that found in boring 81A is lxlOmiddotJ

) (citing Terzaghi et aI (1996)) 72 In any event Dr Bea s C ase 2 cross-sections are not relevant As WGI previously pointed out (and the

Plaintitfs do not dispute) the so-called shell till in boring 81A pre-existed WGls work in the EB1A WGI Mem at p 17 til 48 Thus to the extent the existence of shell till somehow contributed to the levee failures it has no bearing on the case against WG I This is particularly true where as PlaintitTs own site characterization expert concedes WGI did not perform any excavations anywhere near borehole 81 A Ex 50 Rogers Oep Vol 2 at pp 221 16-2245

7) WG Mem at pp 19-24

74 WG( Mem at p 32 75 See Opposition at pp 19-21 76 Opposition at p 19

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Instead they again attempt to divelt attention from this hypothetical excavation by pointilig to

pre-Katrina documents concerning WGJs other excavation and backfill activity near the South

Breach 77 However as WGI detailed in its opening brief none ofthe other WGI excavations on

the Saucer Marine site come close to matching the location and dimensions of the fictional

excavation shown in Dr Beas Case I cross-sections78 Thus the other excavations which Dr

Bea chose not to model are irrelevant to determining the reliability of his South Breach Case I

cross-sections and the flow and stability analyses that he ran based on these cross-sections79

Finally as discussed previously with respect to the North Breach Case I cross-

sections the fact that Dr Bea lIsed inductive reasoning to theorize based on post-Katrina aerial

and ground photographs that WGI might have excavated and backfilled a 25-foot wide x 50-foot

long x 18-foot deep excavation at the South Breach pre-Katrina is irrelevant8o Dr Bea admits

he has no pre-Katrina evidence to support the theory I dont think we were able to trace [it]

The document trai1 went coldSI Undoubtedly as Plaintiffs point out there are times that

inductive reasoning based on scientific judgment and experience may be appropriateS] But in

this instance where a large and extraordinarily detailed record of pre-Katrina excavation

activities in the EBIA exists from WGls files the USACEs files WGIs subcontractors files and

77 Opposition at p 20 78 WGI Mem at pp 22-23 Plaintiffs argue that Dr Bea never claimed that the 18-foot deep 25-toot wide

excavation shown in his South Breach Case 1 cross-section was a result of WGIs grid trenching activities Opposition at p 20 Rather they claim grid trenching is a separate issue at Saucer Marine ld WGI accepts Plaintiffs admission Of course Dr Beas Report states under the heading South Breach Site Case I Cross Sections The currently available information indicates this excavation was associated with foundation and contaminated soils removals (Figure 32a Figure 32b) and north-south grid trenching performed at this location 011 tile EBIA by WGI (Figure 32c) Bea Report App B at p 35 (emphasis added)

79 Moreover Plaintiffs suggestion that Dr Bea has somehow concluded that other WGI excavations on Saucer Marine played a substantial factor in causing the [tloodwall) failure is absurd Opposition at p 20 Dr Bea testified in his April 16 2012 deposition that in order to identit) which excavations in the EBIA were deep enough and close enough to the I-wall to contribute to the I-walls failure we would hae to do a correlation for you to identi fy speci fic excavations then connect that to their depth then correlale that with the contact elevation tor the varied swamp-marsh deposit WGI Mem Ex 10 Bea Oep Vol 3 at pp 855-87 10 When asked if he had done such a correlation Dr Bea said no ld at p 85 14- 15

80 See Opposition at pp 19 21 81 WGI Mem Ex 9 Bea Oep Vol 2 at pp 1163- 176 82 Opposition at p 21

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Case 205-cv-04182-SRD-JCW Document 20865middot2 Filed 0530112 Page 19 of 38

deposition testimony inductions poundiom a post-Katrina photograph are not evidence of

excavations WG J performed in the EB IA pre-Katrina Dr Bea ignores this record because it

does not support his causation theory

2 The permeability value that Dr Bea assigned to the backfill in his South Breach Case 1 cross-sections is not consistent with the backfill that WGI used in the EBIA

Dr Beas SOllth Breach Case I cross-sections assume that WGJ would have

backfilled the fictional 18-foot deep excavation with river sand 83 Dr Bea purported to assign

the river sand-at least in his Report-a permeability value of lxlO-2 cmsec or 01 cmsec84

But in his SEEPW model Dr Bea instead assumed the alleged South Breach Case I excavation

was backfilled with a material having a permeability value of 1 cmsec which is 100 times more

permeable than river sand85 Indeed Plaintiffs hydrogeology expert confirms that a permeability

value oft cmsec is consistent with clean shell till that does not contain any sand86

None of Plaintiffs experts contend (and none of the contemporaneous documents

in the record indicate) that WGI ever backfilled an excavation anywhere on the EBIA with clean

shell fill or gravel 87 For this reason as WGI argued in its opening brief-and Plaintiffs did not

dispute--Dr Beas seepage and stability models based on the South Breach Case I cross-

sections do not represent the pre-Katrina geotechnical conditions that existed in the EBIA88

Once again Dr Bea has either ignored the facts or deliberately manipulated them to serve his

purposes Either way his South Breach Case I cross-sections and related computer models are

unreliable and should be excluded

83 See Bea Repol1 App B Figures 33 amp 35 WGI Mem Ex 9 Bea Dep Vol 2 at pp 25422-255 3 84 Bea Repol1 App C at p 2 (Table I) 85 WGI Mem at p 32 (citing Ex 15 Silva-Tulia Decl Ex B at 1 l 86 Id at p 32 (citing Rogers Oep Vol 2 at p 245 10-16) 87 WGI Mem at p 32 88 Id

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~ Case 205-cv-04182 -SRDmiddotJCW Documen t 20865-2 Filed 053012 Page 20 of 38

D South Breach Case 2 Cross-Sections

In its opening brief WG I argues that Dr Beas South Breach Case 2 cross-

sections are unreliable for two basic reasons First they show a narrow 99-foot long

(perpendicular to the floodwall) x 10-foot deep uti Iity trench extending from the floodwall

towards the IHNC a teature that never existed before Katrina 89 Second Dr Bea inappropriately

analyzed these cross-sections in two dimensions As a result in his SEEPW model the

narrow trench widens to the entire north-south dimension of the floodwal1 9o Plaintiffs have no

credible arguments to refute these contentions and therefore Dr Beas Case 2 cross-sections

(and any analysis based on the cross-sections) should be excluded

1 Dr Beas assumption that WGI excavated a deep utility trench in the vicinity of the South Breach is belied by the record evidence

Dr Beas sole support for the existence of the alleged deep trench in his cross-

sections is a 1969 project plan that shows a buried six-inch water line and two-inch gas line

penetrating the floodwall at the location of the South Breach91 However WGJ has presented

irrefutable contemporaneous evidence that the utility lines that WGI removed at Saucer Marine

did not result in a ten-foot deep trench adjacent to the floodwall 92 The trenches in fact were

shallow and they were backtilled in one-foot lifts and compacted93 Based on this evidence

Plaintiffs now concede that the hypothetical trench shown in Dr Beas Case 2 cross-sections

could not have been the result of WGI removing a 6-inch water line at Saucer Marine as

represented in Dr Beas Report 94

However Plaintiffs continue to insist that Dr Beas cross-section showing a 10shy

foot deep utility trench next to the floodwall reasonably represents pre-Katrina conditions at the

89 WGI Mem at pp 25-27 90 Jd at p 27 91 Opposition at p 21 (noting that the eieations of the buried util ities shown in the) 969 plans support Dr Seas

assumption that WGI must have excavated a I O-foot deep trench)

WGI Mem at pp 26-27 (citing Exhibits 22-24) 9) Id 94 Opposition at p 2 J (Defendants characterization of the vater line removal appears accurate )

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Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 05(30(12 Page 21 of 38

South Breach because WGI does not have a contemporaneous photograph showing the actual

depth and removal of the 2-inch gas line Thus they claim the 1969 plan is compelling

evidence that in 2003 WG I excavated a I O-foot deep trench next to the floodwal1 95 Plaintiffs

argument is unavailing First Plaintiffs admit that the 1969 plan did not accurately predict the

actual depth of the water line that WGI removed at Saucer Marine96 Second Dr RogerS who

developed the Case 2 cross-sections testified that he was unable to find any evidence that the 2shy

inch gas line as shown in the 1969 plan ever existed97 Finally the work plans daily reports

and photographs of WGIs removal of other 2 or 3-inch gas line in the EBIA prove that the

associated excavations at the floodwall were shallow98 Accordingly Plaintiffs cannot sustain

their burden to prove by a preponderance of the evidence that Dr Beas South Breach Case 2

cross-sections are reliable99

2 Dr Beas two-dimensional modeling of the South Breach Case 2 crossshysections render his analyses wholly unreliable

Plaintiffs do not dispute that if Dr Bea used only a two-dimensional model to

analyze the long narrow trench shown in his Case 2 cross-sections the results would be

misleading and inappropriate Instead they argue that Dr Bea rectified this problem by using

[t]he results from previous analyses of a similar three-dimensional feature to somehow

interpret the results of his two-dimensional analyses IOO Whether or not Dr Bea analyzed some

sort of similar trenches in a three-dimensional model is completely irrelevant Despite

repeated requests from Defendants to review this supposed three-dimensional analysis Dr Bea

(and his graduate student Mr Cobos-Roa) claim the 3-D model was lost andor stolen and thus

95 Id fd

97 WGI Mem Ex 13 Rogers Oep Vol 2 at pp 21221-213 J4 98 See eg WGJ Mem Exs 22-23 (work plans and QARs) Ex 52 (photographs of gas line removal at Boland

Marine Indian Towing and Mayer Yacht)

See Daubelt 509 US at p 592 tilIO 100 Opposition at pp 21-22

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