2018 12 10 Hearing Transcript

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS
2
3 IN RE UPSTREAM ADDICKS AND )
4 BARKER (TEXAS) FLOOD-CONTROL ) Master Docket No.
5 RESERVOIRS. ) 17-9001L
6 -------------------------------)
7
8
9 Courtroom 9C
10 Bob Casey United States Courthouse
11 515 Rusk Street
12 Houston, Texas 77002
13 Monday, December 10, 2018
14 10:00 a.m.
15 Post-Discovery Conference
16
17
18 BEFORE: THE HONORABLE CHARLES F. LETTOW
19
20
21
22
23
24
25 Leslie Berridge, Digital Court Reporter
2
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs v. USA 12/10/2018
1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS AND
3 BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS:
4 CHARLES W. IRVINE, ESQ.
5 LARRY DUNBAR, ESQ.
6 Irvine & Conner, LLC
7 4709 Austin Street
9 (713) 533-1704
10 charles@irvineconner.com
11
12 DANIEL H. CHAREST, ESQ.
13 LYDIA WRIGHT, ESQ.
14 Burns Charest, LLP
15 900 Jackson Street, Suite 500
16 Dallas, Texas 75202
17 (469) 444-5002
18 dcharest@burnscharest.com
19
20 EDWIN A. EASTERBY, ESQ.
21 Williams, Kherkher, Hart, Boundas, LLP
22 8441 Gulf Freeway, Suite 600
24 (713) 230-2200
25 aeasterby@williamskherkher.com
For The Record, Inc.

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1 APPEARANCES (CONT.):
2
3 VUK VUJASINOVIC, ESQ.
4 VB Attorneys
5 6363 Woodway Drive, Suite 400
7 (713) 224-7800
8 vuk@vbattorneys.com
9
10 ON BEHALF OF THE DEFENDANT:
11 WILLIAM SHAPIRO, ESQ.
12 U.S. Department of Justice
13 Environment & Natural Resource Section
14 501 I Street, Suite 9-700
15 Sacramento, California 95814
16 (916) 930-2207
17 william.shapiro@usdoj.gov
18 KRISTINE S. TARDIFF, ESQ.
19 U.S. Department of Justice
20 Environmental & Natural Resources Section
21 53 Pleasant Street, 4th Floor
22 Concord, New Hampshire 03301
23 (603) 230-2583
24 kristine.tardiff@usdoj.gov
25

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1 APPEARANCES (CONT.):
2
3 DAVID DAIN, ESQ.
4 United States Department of Justice
5 Environment & Natural Resources Division
6 Post Office Box 7611
7 Washington, D.C. 20044-7611
8 (202) 305-0481 / (202) 305-0506 (fax)
9
10 JAMES PURCELL, ESQ.
11 U.S. Army Corps of Engineers
12 Galveston District, Office of Counsel
13 2000 Fort Point Road, Room 369
14 Galveston, Texas 77550-1229
15 409-766-3822
16
17
18
19
20
21
22
23
24
25

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1 P R O C E E D I N G S
2 - - - - -
3 (Proceeding called to order, 10:00 a.m.)
4 THE CLERK: All rise. The Court of Federal
5 Claims is now in session, the Honorable Charles F.
6 Lettow presiding.
7 THE COURT: Please be seated. Good morning and
8 welcome.
9 ALL COUNSEL: Good morning, Your Honor.
10 THE COURT: The case before the Court this
11 morning is the Addicks and Barker Upstream Houston Flood
12 Control Reservoir cases. The number is 17-9001.
13 Mr. Charest, Mr. Irvine, why don't you introduce
14 yourself and counsel for the -- as co-lead counsel for
15 the Plaintiffs.
16 MR. CHAREST: Yes, Your Honor. Daniel Charest
17 here on behalf of the Upstream Plaintiffs.
18 MR. IRVINE: Charles Irvine on behalf of the
19 Upstream Plaintiffs.
20 MR. EASTERBY: Armistead Easterby on behalf of
21 the Upstream Plaintiffs, Your Honor.
22 THE COURT: Welcome.
23 MR. VUJASINOVIC: Vuk Vujasinovic, the same, Your
24 Honor.
25 THE COURT: Mr. Vujasinovic, I'll get it right.

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1 MR. VUJASINOVIC: Yes, Your Honor.

2 MS. WRIGHT: Lydia Wright on behalf of the
3 Upstream Plaintiffs.
4 THE COURT: All right, welcome.
5 MR. IRVINE: And we also have Larry Dunbar on
6 behalf of the Upstream Plaintiffs, one of my co-counsel.
7 THE COURT: And who was that, please?
8 MR. IRVINE: Lawrence Dunbar. He is on the
9 original complaint.
10 THE COURT: All right, thank you.
11 MR. IRVINE: Our secret weapon.
12 THE COURT: Mr. Shapiro?
13 MR. SHAPIRO: Good morning, Your Honor. Bill
14 Shapiro on behalf of the United States.
15 MS. TARDIFF: Kristine Tardiff also on behalf of
16 the United States. Good morning.
17 THE COURT: Oh, this is a welcome change.
18 MR. DAIN: David Dain, also from the United
19 States Department of Justice.
20 MR. PURCELL: James Purcell, United States Army
21 Corps of Engineers.
23 And your name, I'm sorry, from the Corps?
24 MR. PURCELL: James Purcell, sir.
25 THE COURT: All right.

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1 In this courtroom -- I'm not used to this

2 courtroom. You are going to have to speak up a little
3 bit. It's probably me, but in any event, if you would
4 help us out, that would be great.
5 We have -- Leslie Berridge --
6 THE REPORTER: Berridge.
7 THE COURT: -- Leslie as our court reporter, and
8 she can -- I even know how to spell it. I might not
9 remember it, but I know how to spell it, but we will go
10 from there.
11 I have four topics to cover that I propose, but
12 I'll take amendments from counsel, additions and
13 deletions. Obviously, this is a post-discovery
14 conference, so we need reports on the discovery progress
15 to date, and I know you have one week left.
16 I'd like to talk a little bit about whether or
17 not we are -- will have in limine motions. I'd also
18 like to talk about, if we could, potential arrangements
19 for the site visit, which I understand has already been
20 scheduled, especially in the Downstream cases, but to be
21 held concurrently with the Upstream cases. That's a
22 little unusual, and that's not what I expected, but in
23 any event, we need to talk about that.
24 And then, very preliminarily, arrangements for
25 the trial. Among other things, time, order of

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1 witnesses, that sort of thing.

2 Mr. Charest, Mr. Irvine, do you have amendments
3 or suggestions? I should give you a minute to think
4 about this.
5 MR. CHAREST: I have to confess, Your Honor, I
6 wrote down three things, and I thought the Court
7 mentioned four.
8 THE COURT: I did.
9 MR. CHAREST: I have in limine motions --
10 THE COURT: Discovery, in limine, site visit, and
11 trial.
12 MR. CHAREST: Discovery. Okay, thank you.
13 We were talking internally about the pretrial
14 memorandum and whether or not the Court might be willing
15 to either forgo that or have us do a proposed findings
16 of facts and conclusions of law, which is maybe a more
17 narrow task.
18 THE COURT: Well, all right, we will talk about
19 that. We will talk about that. If that's all right,
20 we'll talk about that in the middle, after discovery and
21 in limine, before we get to the site visit and trial.
22 Anything further?
23 MR. EASTERBY: The only other thing, Your Honor,
24 is the location of the meeting of counsel. We, Your
25 Honor, have a deposition set in Houston on December 7 --

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1 strike that, December 19th, and I believe the meeting of

2 counsel is to occur on the 20th. So we would propose
3 that the meeting of counsel occur in Houston just
4 because of the convenience.
5 THE COURT: We'll hear from Mr. Shapiro on that
6 subject, I'm sure.
7 Anything else?
8 MR. EASTERBY: I believe that's it for
9 Plaintiffs, Your Honor.
10 THE COURT: Thank you, Mr. Easterby.
11 MR. SHAPIRO: Thank you, Your Honor. I believe
12 all the topics I had anticipated, we can fit into the
13 four topics the Court had outlined.
14 THE COURT: All right, great, thank you.
15 Shall we get a report on -- in fact, if you could
16 approach -- one of you could approach, we could talk
17 about discovery and progress and so on. I just want to
18 make sure I can hear, that's all.
19 MR. EASTERBY: Yes. Mr. Easterby on behalf of
20 the Upstream Plaintiffs, Your Honor.
21 THE COURT: Yes.
22 MR. EASTERBY: To date, we have completed the
23 depositions of the following experts for the United
24 States: Mr. Wolfram, who spoke on the elevations of the
25 various test properties; Mr. Keim, a climatologist who

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1 spoke on the issue of Harvey rainfall and a few other

2 subtopics; the Defendant's hydrologist and hydrology
3 expert, Dr. Nairn, we completed that deposition on
4 Friday of last week.
5 This week, beginning tomorrow, we're scheduled to
6 take the depositions of the Defendant's -- I guess we'd
7 call him a bit of an appraisal expert, although he's
8 actually speaking on hedonic regression, and his name's
9 Craig Landry; and then on the 12th --
10 THE COURT: Let's call that severity.
11 MR. EASTERBY: Severity, there we go.
12 And on the 12th, we'll be taking the depositions
13 of Jean-Pierre du Plessis and David Hooper, who I think
14 are also the Defendant's severity experts. Plaintiffs
15 will be presenting Matthew Deal, with Deal Sikes, who's
16 our appraiser, on severity on Thursday. And on Friday,
17 we have the deposition of Mr. Galloway, who's the
18 Defendant's expert, who speaks to, I believe,
19 flood-proneness.
20 THE COURT: Flood-proneness?
21 MR. EASTERBY: Flood-proneness. I believe his
22 testimony will be that the existence of drainage
23 infrastructure is an indication of an area being
24 flood-prone, and if I've misspoke, I'm sure that counsel
25 will correct me.

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1 THE COURT: Right.

2 MR. IRVINE: I think on Friday, isn't there also
3 Kappel?
4 THE COURT: Mr. Irvine, I'm sorry, you were going
5 to say?
6 MR. IRVINE: No. I was just reminding
7 Mr. Easterby.
8 MR. EASTERBY: Next on my list is Kappel, who is
9 a climatologist expert that Mr. Keim relied heavily
10 upon, so we have two depositions on the 14th. The
11 Defendant will be taking the deposition of Dr. Phil
12 Bedient, who is Plaintiffs' hydrologist and also
13 speaking on hydraulics on Tuesday, December 18th. Then
14 on the 19th, Plaintiffs will be taken the deposition of
15 Andrew Ikert, who speaks to, I believe, the effect of
16 development on stormwater runoff.
17 I believe the last expert deposition I have on
18 this page here is Dr. Bell, who is another Plaintiff
19 expert who speaks on severity.
20 Your Honor, we were served and served rebuttal
21 experts on Friday, so I think there may be a couple of
22 new names that are not on my list, but I believe we'll
23 be in a position to have all discovery completed in
24 early January. So by agreement, we have had a few that
25 are outside of the discovery expert deadline, but I

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1 don't envision any issues in terms of getting agreement

2 on those dates.
3 THE COURT: All right. Just let me check
4 something against the schedule. Well, you aren't
5 missing the schedule by much. All right.
6 How many expert reports were actually submitted
7 and how many rebuttal reports? This is testifying
8 experts, not those who assisted the testifying experts.
9 MR. CHAREST: I think it's seven plus the two
10 rebuttals, is that right, for the Defendants?
11 MR. EASTERBY: And three for us.
12 MR. CHAREST: And three for us.
13 MR. EASTERBY: I believe that's correct, yes,
14 seven and three -- seven and three -- just for example,
15 Your Honor, Keim and Kappel are kind of merged into one
16 report for Defendant, so we count that as one.
17 THE COURT: Now, Kappel -- I probably have the
18 name spelled wrong in my notes -- but in any event,
19 assisted Mr. Keim?
20 MR. EASTERBY: As I understand it from attending
21 Keim's deposition, Keim relied on Kappel and AWA's work
22 in terms of climatology.
23 THE COURT: All right. So I take it seven on the
24 defense side and three on Plaintiffs' side. Is that
25 correct?

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1 MR. CHAREST: I misspoke, Your Honor. It's seven

2 plus one for Kappel would be the reports initially
3 issued, and there's two more -- three people on
4 rebuttal, so it's ten in total for the experts on the
5 Defendant's side.
6 THE COURT: I'm asking you if you would please
7 include the rebuttal experts.
8 MR. CHAREST: Then my count is ten -- ten -- it's
9 a hard one to answer. For example, there's two authors
10 to a series of three or four reports, but I'm thinking
11 in terms of experts, however many reports they issued, I
12 think the number is ten.
13 MR. SHAPIRO: Your Honor, I can speak to this.
14 We have nine expert reports, seven that we turned over
15 initially and two rebuttal.
16 THE COURT: So yours is seven plus two.
17 MR. SHAPIRO: That's correct.
19 MR. CHAREST: But one of those seven includes the
20 Kappel guy, right? So that's -- and Kappel was --
21 THE COURT: Well, we will cover that. I think I
22 understand that one might be issued by two people, but
23 in any event, how many do the Plaintiffs have?
24 MR. EASTERBY: Your Honor, we have reports from
25 Dr. Bedient, from Mr. Deal, from Dr. Bell, and then we

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1 on Friday issued rebuttal reports for Dr. Sager, who is

2 a statistician, Deal Sikes did a rebuttal report, the
3 gentleman that spoke to the mold issues whose name
4 escapes me right now --
5 MR. IRVINE: Mike Marcon.
6 MR. EASTERBY: -- Marcon, and Dr. -- I think I
7 said this, Dr. Bedient had issued a rebuttal report as
8 well.
9 THE COURT: But he issued a base report as well.
10 MR. EASTERBY: Yes, Your Honor.
11 THE COURT: So you are basically talking about
12 three plus three, if we're counting new expert witnesses
13 or expert witnesses. Is that correct?
14 MR. CHAREST: Yes, sir. Four total experts --
15 THE COURT: Four total experts? It's not three
16 plus three. It's actually four total.
17 MR. CHAREST: So five total.
18 THE COURT: Five total. It's actually three plus
19 two.
20 MR. CHAREST: Three plus -- yes.
21 THE COURT: All right, got it.
22 Okay, and you say early January. The last date
23 you had mentioned actually was the 18th, which would be
24 a Tuesday.
25 MR. EASTERBY: Right, Your Honor. The issue is

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1 Dr. Bell, I believe his deposition is set for January

2 8th, and so he's the only one that's kind of a little
3 bit out of time.
4 THE COURT: So there is one expert who is
5 essentially over by more than a day in terms of time.
6 MR. EASTERBY: That's correct. And we have not
7 yet scheduled depositions on the newly disclosed
8 rebuttal experts.
10 MR. EASTERBY: Earls and Jones for the Defendant
11 and Marcon and Sager for the Plaintiffs.
12 THE COURT: Okay.
13 MR. EASTERBY: But Sager is in Austin, Marcon is
14 in Houston, so I don't anticipate any issue on getting
15 those done promptly.
17 May I hear from Mr. Shapiro on the same general
18 topics?
19 MR. SHAPIRO: Thank you, Your Honor.
20 I think the numbers are correct. We did produce
21 seven original expert reports. I'm glad to go through
22 those if the Court would like.
23 THE COURT: Yes.
24 MR. SHAPIRO: So we produced an expert report for
25 Andrew Ickert. He's a civil engineer with Halff

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1 Industries, and he oversaw an effort to attempt to

2 quantify changes in land use development over time from
3 the 1940s, the beginning of the reservoir, to the
4 present time.
5 Craig Landry is a professor of applied economics
6 at the University of Georgia, and he invested --
7 investigated the potential for stigma following the
8 hurricane. He concluded that although there was an
9 immediate price drop, it was short-lived, and there was
10 no unique effect on properties that were inundated by
11 the pool from behind Addicks and Barker.
12 Dr. Gerald Galloway is a professor of engineering
13 at the University of Maryland. He's a visiting
14 professor at Texas A&M. Dr. Galloway focused on
15 disaster resilience and mitigation, and he analyzed sort
16 of the character of Plaintiffs' properties and the
17 reasonable investment-backed expectations prong of
18 Arkansas Game & Fish.
19 And this is I think where Mr. Easterby may have,
20 in our view, not given a complete characterization of
21 Dr. Galloway's testimony, but he will testify that based
22 on his review that the Plaintiffs' test properties were
23 prone to flooding and that at the time of their
24 acquisition there was sufficient information that
25 Plaintiffs could have known that their properties would

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1 flood in a Harvey-like event.

2 Dr. Barry Keim is a professor of geography at
3 Louisiana State University --
4 THE COURT: At where?
5 MR. SHAPIRO: Louisiana State, and he's also a
6 Louisiana State climatologist.
7 THE COURT: Is that K-I-M-E? How does --
8 MR. SHAPIRO: K-E-I-M.
9 THE COURT: K-E-I-M-E. Is there an E on the end?
10 MR. SHAPIRO: There is not.
11 THE COURT: Okay, K-E-I-M.
12 MR. SHAPIRO: Right. He's also a Louisiana State
13 climatologist. Together with Bill Kappel, K-A-P-P-E-L,
14 who is the chief meteorologist at Applied Weather
15 Associates, he analyzed Hurricane Harvey in comparison
16 with other storms that have occurred to date and
17 concluded that -- several things, but including the fact
18 that over a 120-hour period, the average rainfall from
19 Hurricane Harvey was about 33 inches, which has a return
20 interval of about 770 years.
21 Dr. Robert Nairn --
22 THE COURT: How do you spell that?
23 MR. SHAPIRO: N A I R N. He is an engineer at
24 Baird & Associates, and he used a computer model to
25 examine flooding in three different scenarios, the

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1 actual Harvey event, the situation in which the federal

2 project is removed, and the situation in which the gates
3 at the reservoirs had been kept closed. And the Court
4 will hear that his analysis showed that the test
5 properties in the Upstream flooded as a result of the
6 pool that backed up behind the reservoirs. There's no
7 debate about that, and the Court won't hear contrary
8 evidence on that.
9 The Corps had informed the public beforehand
10 about that possibility decades ago, and so the testimony
11 will be, we believe, Your Honor, that the flooding that
12 occurred on the Upstream test properties is just a fact
13 of building a house in an area that's subject to
14 inundation from the reservoirs.
15 He also looked secondly at what would happen if
16 we removed the federal project, and the federal project
17 in our view includes not only the dams, but also some
18 rectification of some of the channels downstream and the
19 creation of some channels upstream. So once you remove
20 those, he concluded that it's likely that there were
21 three test properties that would have experienced some
22 flooding, and he attempted to quantify that using his
23 model. And that really is -- the reason those are
24 likely to have flooded is that without those, the
25 channels that allowed the water to move from those

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1 developments into the reservoirs, there would have

2 likely been some flooding on those properties.
3 And then, finally, he looked at what would have
4 happened if the Corps had kept the gates closed, and not
5 surprisingly, the Upstream properties would have flooded
6 far more. That's a situation that the Downstream
7 properties think we should have -- the Corps should have
8 done, and that is really the only way the Corps could
9 have sort of minimized the damage at the Downstream
10 properties during that particular event.
11 Next is J.P. du Plessis and David Hooper, and
12 they are engineers with Madsen, Kneppers & Associates.
13 They prepared damage estimates --
14 THE COURT: The second expert on that set is --
15 MR. SHAPIRO: David Hooper.
16 They prepared damage estimates not in terms of
17 cost of repair but instead what types of repairs might
18 be needed under different scenarios. And so they really
19 rely upon the work that Dr. Nairn had done to attempt to
20 determine what kind of repairs on the test properties
21 would have been needed in the various scenarios.
22 THE COURT: Are they doubling over in the same
23 report or are they issuing separate reports?
24 MR. SHAPIRO: They have the same report. The way
25 it's split up is I believe Mr. Hooper focused more on

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1 the mold issue, which was a concern during the event.

3 MR. SHAPIRO: Billy Wolfram is an expert in
4 surveying, and he calculated elevations during -- sort
5 of in anticipation of Dr. Nairn's work and some of the
6 other experts' work to figure out what the evaluation of
7 the first floor is. I don't think there's a lot of
8 dispute about the elevation here, and we are hoping that
9 that's something the parties can just agree to.
10 And then those were our initial experts. Then we
11 have two rebuttal experts from John Jones and Andrew
12 Earls, and they're both from -- engineers with Wright
13 Water Engineering, and they've prepared a short rebuttal
14 addressing particular issues in Dr. Bedient's expert
15 report.
17 May I have the same sort of explanation on
18 particular experts on the Plaintiffs' side?
19 MR. IRVINE: Yes, Your Honor, Charles Irvine.
20 So we have Dr. Bedient is our primary expert.
22 MR. IRVINE: B E D I E N T, Dr. Phil Bedient. He
23 testified -- he will testify about the cause of the
24 flooding being related to the pool of the reservoir, and
25 he will also testify about the -- eliminating the other

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1 reasons for why those plaintiff properties may have

2 flooded.
4 MR. IRVINE: So, in other words, their flooding
5 was not -- would not have occurred but for the pool
6 rising, and I think -- you know, I heard Mr. Shapiro
7 basically -- I don't know if it's a stipulation, but
8 hopefully we will get to that in the pretrial
9 conference, that the Government will stipulate that many
10 of these test properties did flood for the sole reason
11 that the Government-created pool inundated their
12 properties.
13 Dr. Nairn's report basically puts water onto
14 three of the properties, he alleges, by his model. We
15 composed Dr. Nairn extensively on Friday, and so we have
16 disagreements about that, but I don't think we have
17 disagreement with Dr. Nairn about the fact that, you
18 know, without the pool, ten of those properties -- ten
19 of those test properties would not have flooded, would
20 not have had any water inside the home.
21 We have a report from Randy Bell, who is an
22 expert appraiser, on the issue of damaged properties.
23 He wrote one of the key books that the Federal
24 Government itself relies on. He has done a -- and this
25 goes to the severity issue, not to the amount of

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1 damages, just to the severity issue. He has come up

2 with a -- basically an assessment that, you know, these
3 properties did suffer a decline in the value of the
4 property. He's not trying to put a number on it, but
5 he's just saying it was a decline, and so that's going
6 to be contrasted with Landry's report that says, oh, all
7 these properties declined immediately after and then
8 bounced back. So we'll have that -- we'll have that
9 discussion, and we haven't deposed either of those
10 experts.
11 There is also a second appraisal report from Deal
12 Sikes.
14 MR. IRVINE: Deal, D E A L, and then the second
15 name is Sikes, S I K E S. They do more of a traditional
16 appraisal, not a modeled appraisal, but more of a
17 traditional appraisal comparing, you know, sales before
18 and after. So we have those two appraisal reports. The
19 Bell report is for me and Mr. Charest's clients. The
20 Deal Sikes report is for Mr. Easterby's and
21 Mr. Vujasinovic's clients. So we just have those two
22 different reports so that we can kind of compare the
23 results of both of them.
24 With respect to rebuttal, we have an
25 environmental remediation expert called Mike Marcon from

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1 In Control Technologies. He will basically rebut the

2 notion of the du Plessis concept that the only thing you
3 consider when you're looking at damages is the depth for
4 water in the home as predicted by Dr. Nairn's model. He
5 will say that basically when you have water in your home
6 for five days, ten days, however long it is, and you
7 lose power, and you have no AC during August, that you
8 can get whole house damage, right? So the damage is
9 much more severe -- he will basically testify that the
10 damage is much more severe than what is, you know,
11 disclosed in those reports from du Plessis and Hooper.
12 The final expert -- oh, Dr. Sager. Dr. Sager did
13 a short analysis of some of the statistics that
14 Dr. Nairn relied on in his report. Dr. Nairn, you know,
15 came up with some very -- very apparently conclusive,
16 you know, highly reliable statistics in his report, 0.99
17 degree of certainty, things like that, and Dr. Sager
18 will rebut that. So we did a short analysis of the
19 statistics that Dr. Nairn relied on, and we did a
20 slightly different review of it, and so that's basically
21 our experts.
22 THE COURT: Good. Thank you.
23 Let's -- and, Mr. Shapiro?
24 MR. SHAPIRO: I'm sorry, Your Honor. One other
25 issue that came up during Plaintiffs' original

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1 presentation was the timing of the expert depositions.

2 THE COURT: Yes.
3 MR. SHAPIRO: If I could just address one point.
4 THE COURT: Yes, certainly.
5 MR. SHAPIRO: I think I tracked all of the dates
6 that Mr. Easterby gave, but as the Court recognized,
7 there is one of Plaintiffs' experts, Randall Bell, who
8 due to his limited availability, we won't be able to
9 depose until January 8th. The other rebuttal experts,
10 we have not talked to Plaintiff yet about trying to
11 schedule that, and, I mean, we are going to do our best
12 to fit those in, but given the expedited schedule, that
13 is going to be a bit of a challenge, but we haven't
14 discussed yet when or how that's going to actually
15 occur.
16 THE COURT: What is the situation with Dr. Bell?
17 Why is it that it's carrying over to January 8th, if I
18 recall correctly?
19 MR. CHAREST: He's traveling internationally,
20 sir, so he --
21 THE COURT: Where is he?
22 MR. CHAREST: He lives in California. We offered
23 him up in California, but they couldn't get out there in
24 time. The next available date, based on his travel --
25 he's traveling -- he's, I think, in India right now.

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1 THE COURT: Oh, all right.

2 MR. SHAPIRO: And Dr. Bell -- I mean, we have
3 come to terms with Dr. Bell's limited availability, so
4 we have agreed to do him on the 8th of January. It's
5 just the remaining rebuttal experts are going to be more
6 of a challenge.
7 THE COURT: All right. That's what I was
8 concerned about. It's just that Dr. Bell is testifying
9 on a subject both sides know very well, obviously, and
10 so the general topic is not a surprise, and you have the
11 report in hand?
12 MR. SHAPIRO: Yes.
13 THE COURT: Okay, fine.
14 MR. CHAREST: I don't expect that our deposition
15 of their expert will reveal a bunch of new information
16 or theirs of ours. I think we understand that issue.
17 MR. SHAPIRO: I think that's true.
18 THE COURT: All right. Let's talk a little bit
19 about scheduling the rebuttal experts from the
20 Plaintiffs' side, because that sounds a little more
21 interesting. It sounds like there will be topics that
22 will be at least addressed but not as precisely on the
23 defense side and the Plaintiffs' base report side. Can
24 you complete those before, let's say, the 21st? You
25 don't know yet because you haven't tried.

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1 MR. CHAREST: We really haven't gotten together

2 on the dates yet, Your Honor.
3 THE COURT: Is there anything about the
4 availability of those experts that will pose a problem?
5 MR. CHAREST: Not -- no, sir, I don't think so.
6 THE COURT: All right. How many of them are
7 academics?
8 MR. CHAREST: Well, Sager's an academic and
9 Bedient's an academic. Of course, Bedient is being
10 deposed -- will have been deposed already. And then
11 Marcon is not an academic.
12 THE COURT: He's not?
13 MR. CHAREST: He's a professional.
14 MR. IRVINE: I don't anticipate a problem with
15 his availability.
16 THE COURT: All right, okay. Thank you. That
17 helps.
18 MR. IRVINE: We do have some proposed dates from
19 DOJ on their rebuttal experts. I don't know, I'll let
20 them talk about that, but the dates either collide with
21 some of the earlier depositions that we've planned or
22 they're in January, so...
23 THE COURT: All right, that helps.
24 Let's talk a little bit about the meeting of
25 counsel scheduled for the 20th. The location, why is

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1 that a problem?
2 MR. EASTERBY: Your Honor, I don't know if it is
3 a problem. It just occurred to me that if we're going
4 to be in Houston for the Ikert deposition the day
5 before, it would just make sense to maybe carry over,
6 maybe even have it that same day as the Ikert
7 deposition, depending on when we get finished, as
8 opposed to us all flying to D.C. and having it there.
10 Mr. Shapiro?
11 MR. SHAPIRO: Well, Your Honor, this is not
12 something that we've talked about previously. My
13 experience is these are often done by telephone. We
14 will be --
15 THE COURT: This might not. I understand that.
16 MR. SHAPIRO: We will be together. We're -- I
17 think, depending upon how long the deposition takes, I
18 mean, we might be able to find some time to do it.
19 THE COURT: All right. That doesn't sound like a
20 problem.
21 MR. SHAPIRO: No.
22 THE COURT: I think you can handle that.
23 MR. EASTERBY: Yes, sir. I mean, one thing that
24 came up in the Defendant's presentation that I was a
25 little bit surprised by but also encouraged is that

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1 they're agreeing and admitting that all of the test

2 properties' inundation resulted from the Corps of
3 Engineers' use and operation of the dams during Harvey,
4 that disposes of potentially a major issue at trial.
5 THE COURT: Well, it doesn't sound like all.
6 MR. EASTERBY: I thought that's what he said.
7 THE COURT: No.
8 MR. EASTERBY: I know what Mr. Irvine said, but
9 some clarification on that point might be helpful.
10 THE COURT: Well, I think you can work that out
11 among yourselves. I heard Mr. Shapiro say essentially
12 ten basically, subtracting three from 13.
13 MR. SHAPIRO: Well, not -- there is one -- that's
14 correct. Dr. Nairn's testimony will be that there are
15 three that would have experienced some flooding even
16 with the absence of the federal project. Then, of
17 course, there's one other one, so a fourth property,
18 Popovici, whose property -- I guess he had some water on
19 the lawn but it didn't go inside the home.
20 THE COURT: Okay, all right. That will help.
21 That will be a start.
22 MR. EASTERBY: Yes, sir.
23 THE COURT: All right. Mr. Easterby, let's talk
24 a little bit about stipulations. We have nothing
25 specified respecting stipulations. Ordinarily, the

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1 Court likes to have stipulations in hand -- and this I

2 treat almost as part of discovery -- likes to have
3 stipulations in hand before the pretrial conference, and
4 I don't know if you're going to be able to have
5 stipulations at all. I would hope you'd have some.
6 Have you even thought about that? It's a mandatory
7 topic for the meeting of counsel.
8 MR. EASTERBY: Your Honor, we have thought about
9 it on the Plaintiffs' side, and what we basically did
10 was go look at Arkansas Game & Fish's final pretrial
11 order and plagiarized it heavily on our side. We
12 haven't --
13 THE COURT: That's helpful. Mr. Shapiro and I
14 are both familiar with it.
15 MR. EASTERBY: Correct, Your Honor. So we have
16 not yet exchanged that with Defendant, but one of the
17 key issues from that were the site visit and also
18 whether there are any -- if the parties are aware of any
19 issues relating to the authenticity of any of the
20 proposed trial exhibits. Assuming there are not, that
21 would dispose of potentially a lot of the meeting of
22 counsel topics.
23 I don't think we are presently aware of any
24 issues on authenticity in terms of what they've
25 produced, so we can talk about that, but my -- my goal

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1 was to try to use the Arkansas Game & Fish pretrial

2 order as a model for ours.
3 THE COURT: Yes. And the other one you might
4 look at, in the other fairly complicated trial that
5 comes to mind, is a patent case, surprisingly, FastShip,
6 and the S is capitalized even though it's -- well, I can
7 give you the case number. Just a minute.
8 MR. EASTERBY: We'll find it.
9 MR. CHAREST: FastShip?
10 THE COURT: Yes. In our Court, the case number
11 is 12-484, and that one I call to your attention just
12 because there were a number of factual issues that were
13 important to the case and a number of experts who
14 testified, whose testimony was important to the case,
15 and that was after a winnowing on some motions as well.
16 So I just commend that to your attention.
17 Yes?
18 MR. IRVINE: And just to say, Your Honor, we did
19 serve a significant number of admissions, several rounds
20 of admissions that we found useful in terms of hopefully
21 narrowing down the issues for trial, so I think that
22 will help.
23 THE COURT: All right. Let me ask one other --
24 well, while we're talking about this, in the context of
25 stipulations, there is in the Appendix A to the Court's

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1 rules a provision that requires advance notice if you

2 want to use deposition testimony of agents and officers,
3 officials, and I hope you take that to heart, but the
4 Court has a habit -- habit, it's not exactly a habit,
5 more a custom and practice -- of actually having that
6 kind of deposition testimony read into the record rather
7 than just having it be something that is just received
8 in documentary form.
9 MR. CHAREST: To that end, sir --
10 THE COURT: I wanted to hear that testimony in
11 exactly the same way I hear all the other testimony.
12 That's part of the exercise.
13 MR. CHAREST: To that end, sir, would you like to
14 have video cut or is it --
15 THE COURT: The video is different. That can
16 come in and we actually watch it and so on in trial, but
17 it takes some trial time.
18 MR. CHAREST: Understood. That's helpful.
20 MR. SHAPIRO: Your Honor, perhaps that's an issue
21 we can talk a little bit about now. The United
22 States -- we had given some thought to that possibility
23 of submitting deposition transcripts. I think at this
24 point we don't intend to do so.
25 THE COURT: Okay.

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1 MR. SHAPIRO: But it would help, you know,

2 everyone's plan, including the Court's, to know what
3 Plaintiffs' intentions are in that regard.
4 THE COURT: Well, that obviously is a topic for
5 the meeting of counsel.
6 MR. SHAPIRO: Right.
7 THE COURT: We have to try to sort all those
8 issues out, but I'm just anticipating a little bit and
9 warning you that -- "warning" is too strong a word --
10 giving you advance notice that even if you stipulate
11 to -- well, let's say you can't have some testimony that
12 is taken by deposition but is just admissible anyway
13 under the Federal Rule of Evidence, but the Rule 26
14 deposition testimony does not come in that way, but in
15 any event, either way, the Court will require the
16 deposition testimony to be read in. So somebody has to
17 sit in the witness box and then, Counsel, you just --
18 you know, you just talk, and I listen to that just as I
19 would any other testimony. It comes in the same way.
20 You just -- it will show up in the transcript, so you're
21 not looking at documents. You're actually looking at a
22 trial transcript.
23 MR. EASTERBY: Yes, Your Honor, and I believe it
24 is our plan to use live witnesses as much as we possibly
25 can.

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1 THE COURT: Right. It's much preferred.

2 MR. EASTERBY: There are a couple of folks that
3 may be out of subpoena power of the Court that we may
4 have to use a deposition for, but if the Defendant's
5 able to get them down here, we would prefer to have them
6 live. From my experience -- and I'm sure yours is the
7 same -- it's much more efficient. I know Your Honor
8 likes to ask questions of witnesses, and in a deposition
9 context, that's impossible, so...
10 THE COURT: Yes. Well, I will try very hard to
11 restrain myself from asking questions unless they're
12 hypertechnical questions where I don't understand
13 something, until both direct examination and cross
14 examination has been completed, because I was in your
15 shoes a number of times, and I had an examination
16 planned just as you will have an examination planned,
17 and I would not necessarily welcome having it
18 interrupted. So I will try to be as cognizant of that
19 fact as I possibly can be.
20 MR. EASTERBY: Thank you.
21 THE COURT: Okay. But stipulations, if you can
22 do it and to the extent you can do it, it really helps,
23 because then you have a baseline across the board that
24 you both accept, both sides accept, and we can go
25 forward from there.

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1 MR. SHAPIRO: And we will endeavor to do that.

2 We have obviously been giving that some thought as well,
3 Your Honor. The realities of the schedule may make that
4 more difficult, but we will do our best.
5 THE COURT: Good. Well, I'm sure you'll try.
6 I'm sure you'll come up with things, but the question is
7 the extent, and I would just encourage you to focus on
8 that, because it will help both sides out.
9 MR. CHAREST: With respect to stipulations, Your
10 Honor, is the Court asking specifically about factual
11 stipulations or also agreements for admissibility and
12 that sort of thing?
13 THE COURT: Agreements for admissibility, you
14 don't have to address by stipulation.
15 MR. CHAREST: Okay.
16 THE COURT: Just factual matters.
17 MR. CHAREST: Understood. All right.
18 MR. EASTERBY: Your Honor, I just have one issue
19 I wanted to take up, because it's something I have not
20 dealt with in trial before. In this case, we have
21 overhead imagery of the inundation pool dated August
22 30th that was taken by NOAA, and I believe that a Google
23 vendor also took some overhead imagery on August 31st,
24 although that date's a little bit unclear.
25 We had produced or actually the Defendant has

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1 produced underlying files of the NOAA imagery. I think

2 it's something like two terabytes of data that it's not
3 practical to actually admit that into a record. So we
4 had contemplated using a monitor to show the Court the
5 area and scope of inundation in some areas. I'm just
6 thinking about how we actually want to get that into a
7 record such that it can be reviewed on appeal. So
8 that's new to me, and I just wanted to raise it today to
9 see if the Court maybe had any --
10 THE COURT: One of the reasons I guess I
11 mentioned FastShip is that -- well, let me tell you what
12 that case involved. It involved a patent on hull and
13 power systems design for reasonably large size ships,
14 not huge. They were -- they were essentially about
15 frigate size, littoral combat ships, and video evidence
16 came in, and some of the agreements of counsel had to do
17 with the basis for the video, the provenance of the
18 video and that sort of thing. So it just wasn't really
19 an issue.
20 Now, I mention that because the video went
21 forward on appeal as well, and the Court of Appeals has
22 decided the appeal. So if you can cover the provenance
23 by stipulation that we don't have to encumber the record
24 with it, but whatever the videos are ought to come in,
25 and, again, we actually had ship models. We had models

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1 of cruisers, destroyers, that sort of thing that came

2 in, that the Navy essentially provided and loaned in
3 FastShip as well. Then the Navy got them back, but you
4 get the idea.
5 MR. EASTERBY: Yes, sir.
6 THE COURT: So there was a lot of physical
7 evidence or material that came in in FastShip.
8 MR. EASTERBY: Very well. We will look at that
9 case and see if we can get stipulations on the
10 provenance of those --
11 THE COURT: Mr. Shapiro, do you have any
12 commentary?
13 MR. SHAPIRO: No, Your Honor. I don't think so.
14 THE COURT: All right. Let's see. Have we
15 covered enough of the evidentiary topics to move forward
16 to in limines? I'll give you a minute to think about
17 this, because we're looking at each other, and this is
18 the time to talk about some of these things.
19 MR. CHAREST: So my -- if I could just -- I'll
20 throw it out there on in limines. My view is I don't
21 know the reason we would do it because the Judge is the
22 person -- there is no jury to be worried about, so
23 that's my view personally.
24 THE COURT: Well, you might have a problem with
25 the qualification of an expert. It doesn't sound like

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1 it, but in any event -- or you might have a problem with

2 a precipient witness. That is really unusual. It could
3 happen.
4 MR. EASTERBY: Your Honor, assuming we follow the
5 model of Arkansas Game & Fish, where I believe the Court
6 allowed voir dire of experts at the beginning of their
7 examination --
8 THE COURT: Not allowed, required.
9 MR. EASTERBY: Required, it was required. I
10 think that will dispose of the need of in limine
11 motions, at least for the Plaintiffs' side, for the
12 Defendant's experts. I don't want to be totally stuck
13 with that, but I think that's what I'm thinking right
14 now.
16 MR. SHAPIRO: At this point, without waiving my
17 rights, we aren't currently anticipating any motions in
18 limine.
19 THE COURT: All right. That would simplify all
20 of our lives a little bit.
21 Now, we ought to talk a little bit about
22 qualifying experts to testify. The Court really does
23 follow Federal Rule of Evidence 702, and so I would ask
24 the parties to carry forward, even though you're very
25 familiar with these expert witnesses, to deal with the

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1 basic premises of Rule 702; that is, the qualifications

2 of the expert, what the expert has done from a factual
3 standpoint to look at the topic of the expert's
4 testimony, and then how the expert has applied whatever
5 expertise the expert has to the facts. So not in terms
6 of the entire testimony but in terms of what actually --
7 just march through what actually the expert is doing and
8 why the expert is appearing and so on and so forth,
9 before the expert actually gets into the topic of the
10 expert's testimony.
11 Does that make sense, Mr. Easterby?
12 MR. EASTERBY: It does, Your Honor.
13 THE COURT: Okay. And as long as you know that
14 you have to deal with all three of those aspects, you
15 can cover it reasonably quite quickly and adeptly. And
16 I say that just because sometimes there is a question
17 about the scope of the expert testimony, the scope of
18 the expertise that's being applied, and that can come in
19 to the degree of qualification of the expert to testify.
20 So usually it's not so much whether the expert was going
21 to testify or not, but whether he or she is qualified to
22 address given areas.
23 MR. EASTERBY: Understood, Your Honor.
24 THE COURT: There is one other thing.
25 Mr. Shapiro is certainly familiar with this. The Court

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1 has a custom and practice of admitting expert reports

2 actually into evidence insofar and to the extent that
3 the expert's topics in the report have been covered in
4 direct testimony. If a topic has not been covered in
5 direct testimony, then that part of the expert report
6 would be excluded.
7 Mr. Irvine?
8 MR. IRVINE: I don't think we have any problem
9 with that concept.
10 THE COURT: All right. I mean, this is a bench
11 trial. As long as I have heard the expert testify on
12 given topics, that's fine, and I will be looking at the
13 expert report while the expert's testifying.
14 MR. CHAREST: This may or may not be the
15 appropriate moment to raise a concern we've run across,
16 but Nairn had the model, right, that was in his report?
17 MR. IRVINE: Yes, Your Honor. So we ran into
18 this one issue at Dr. Nairn's deposition on Friday where
19 Dr. Nairn included some of his Downstream modeling as
20 Appendix C in his Upstream report. He has two separate
21 reports.
22 THE COURT: Let me think about that again. Will
23 you say that again? I want to make sure I have which --
24 inclusion in what?
25 MR. IRVINE: Dr. Nairn is the hydrologist who did

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1 the model for the Department of Justice, the Government,

2 and his model predicts flooding into three homes on the
3 Upstream side. Then he runs several different
4 scenarios. His first scenario is a no-project scenario,
5 so essentially he took out everything that exists on
6 government-owned land, which means he takes out channel
7 improvements, takes out the dams, takes out the gates,
8 and then he ran that model.
9 And then he ran two other scenarios, one of which
10 was gates opened from the start of the rain and gates
11 closed from the start of the rain, and based on that, he
12 predicts how much water would be in each of the test
13 property homes or not in each of the test property
14 homes.
15 Appendix C of his report includes other model
16 runs that weren't disclosed. I mean, they're disclosed
17 in the sense that they are actually physically in the
18 report, but we ran into this discussion and objections
19 and instructions not to answer from DOJ on Friday where
20 DOJ was arguing that those aren't part of his opinion.
21 One of the most important ones is what he called
22 the no-project 2 run. The no-project 2 run took out the
23 physical dams but left in place some of the channel
24 improvements on government-owned land, and that resulted
25 in less inundation on at least one of the test

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41
1 properties. So it is a somewhat important thing.

2 He also -- Dr. Nairn ran historical models for --
3 what was it, Allison, Ike, a whole bunch of other
4 historical rainfall events that weren't part of his
5 Upstream report, but they were included in Appendix C of
6 his Upstream report. And so, you know, we ran into this
7 issue of, like, what is his opinion? And can we, as
8 Plaintiffs, rely on -- you know, kind of question him on
9 his no project run, no project 2 run, historical storm
10 runs, because these are quite important, right?
11 If he has an opinion that without the dams and
12 without any project improvements on government-owned
13 land, then three test properties will flood, and then if
14 he has an opinion in a Downstream case that was included
15 as Appendix C in the Upstream report that only two of
16 those properties might have flooded, you know, it seems
17 to be kind of relevant.
18 THE COURT: Well, I'm sure Mr. Shapiro and
19 Ms. Tardiff would agree that if there's an aspect of his
20 opinion that -- in the Upstream cases that is derived
21 from one of his appendices, he ought to be examined on
22 that. On the other hand, if he doesn't testify about
23 them, then that's a different matter.
24 MR. CHAREST: Well, I think it's fair for us to
25 cross examine him, Your Honor.

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1 THE COURT: Well, we will get there. I have a

2 sneaking suspicion we'll get there, but --
3 MR. SHAPIRO: If I could, Your Honor, I wish I
4 had a copy of the transcript. What I heard Mr. Irvine
5 say is that we didn't disclose it but it's in the
6 report. I mean, we did include the results from the
7 Downstream runs or the runs that included the Downstream
8 test properties, because it matters. In our -- as the
9 Court is aware, the United States is of the opinion that
10 these two cases are linked in such a way that it is
11 impossible to separate them. So if the gates are open
12 and the Upstream properties may have flooded less, that
13 has an impact on the Downstream properties, and so it's
14 included for that purpose, Your Honor.
15 THE COURT: All right. Well, I --
16 MR. SHAPIRO: There are other runs that are
17 included in the Downstream case that we -- we thought
18 might be relevant for the Downstream case, but it is not
19 a run -- if that's not included in the Upstream run,
20 then Dr. Nairn is not going to talk about it.
22 MR. SHAPIRO: I'm also concerned, if I could,
23 Your Honor --
24 THE COURT: Yes, please.
25 MR. SHAPIRO: -- I'm sorry to have to go back to

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1 Dr. Nairn's opinion, but I neglected to include one of

2 the -- one of the runs that he did discuss in his
3 Upstream report, which is that the dams exist and the
4 gates are left open, and several of the properties --
5 flood properties flood in that scenario, but the Court
6 will hear all of that.
7 THE COURT: All right. Well, this will be
8 fascinating, and the Court will look forward to this
9 exercise.
10 MR. CHAREST: The Court issued not so much an
11 order of disclosure here, Your Honor, but Mr. --
12 Dr. Nairn is being -- is saying I -- he's excluding runs
13 from his opinion Upstream that he includes in his
14 opinion Downstream, and we don't -- it's a -- it's a
15 fallacy. He did all of the reports, did all of the
16 models.
17 MR. IRVINE: It's the same model. So his entire
18 model is the same, that if he --
19 THE COURT: Except that if he has an opinion --
20 MR. IRVINE: -- same results.
21 THE COURT: -- has an opinion that relates to the
22 Upstream and it doesn't relate to the Downstream, then
23 we don't have to deal with the downstream runs. On the
24 other hand, if he has -- if he has an opinion on the
25 Upstream that is derived from some of the runs he did,

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1 even though he categorizes them or classifies them as

2 Downstream, that doesn't work. He's going to have to
3 testify about them.
4 MR. SHAPIRO: That's exactly right. I mean, the
5 United States made a conscious decision about what runs
6 it thought were relevant for legal reasons --
7 THE COURT: Right.
8 MR. SHAPIRO: -- to include in the Upstream, and
9 we made a decision that we thought other runs might be
10 relevant for the Downstream case.
11 THE COURT: Right.
12 MR. SHAPIRO: That's all this is.
13 THE COURT: All right. We'll find it. We'll
14 sort it through. It will be fun. I say fun, you know,
15 it's not -- it will be entertaining in any event.
16 MR. EASTERBY: Your Honor, just one final point
17 to make on that issue is that Dr. Nairn's domain, the
18 area that was modeled, is over a million acres, and that
19 extends from the Houston ship channel clear up to an
20 area that's a little bit northwest of Waller, Texas. Of
21 particular interest to us is that he did a run of a Tax
22 Day 2016 weather event in which two of the Upstream test
23 properties experienced inundation.
24 We have uncovered some documents in discovery
25 that suggest that was associated with rising reservoir

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1 pools. So if the Defendant is going to argue, hey,

2 you're flood-prone, you flooded before on Tax Day, it
3 had nothing to do with us, but in actuality, it did have
4 something to do with the operation and use of these
5 dams, that becomes highly probative for periodicity and
6 causation. So I raise that because those are the
7 Downstream things he did that were excluded from the
8 Upstream portion of his report, and in fairness, I think
9 we ought to be able to get into that.
11 MR. SHAPIRO: Well, if I could respond to that,
12 Your Honor, that's partially correct.
13 THE COURT: Now, if I remember, the Tax Day, it
14 occurred in 2016?
15 MR. EASTERBY: Yes, Your Honor. It was April 18
16 of 2016.
17 THE COURT: All right. I thought I remembered
18 that. Go ahead.
19 MR. SHAPIRO: So Dr. Nairn, in the Downstream
20 case, we have a net benefits argument that we intend to
21 present.
22 THE COURT: Yes.
23 MR. SHAPIRO: Not surprising.
25 MR. SHAPIRO: Without the reservoir, not -- not

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1 only would the Downstream properties have flooded more

2 during Hurricane Harvey, but there would have been
3 additional flooding in many other storms as well. He
4 analyzes that and comes up with a conclusion, which he
5 sets forth in the Downstream report about sort of that
6 net benefits argument, but it's not something that he's
7 included in his Upstream report.
8 If Plaintiffs have the belief that the -- some of
9 the Upstream properties would have flooded during one of
10 these other storms, then they could have had their own
11 modeler run those numbers and conclude that, but that's
12 not a part of Dr. Bedient's report or any of the other
13 Plaintiffs' reports.
14 THE COURT: Well, let's talk about that a little
15 bit. If the Court recalls correctly, the Tax Day
16 event -- I am going to call it an event -- came up
17 previously because, if recollection serves, there were
18 lawns and streets that everybody said were, in prior
19 motion practice, during the Tax Day event, that related
20 or affected the Upstream properties or some of the
21 Upstream properties. Is that right?
22 MR. EASTERBY: That's correct, Your Honor, and
23 the Turney and Burnham test properties had structured
24 flooding on Tax Day, and these are DOJ-selected test
25 properties.

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1 THE COURT: Okay.

2 MR. EASTERBY: We believe -- and I don't know if
3 they have said this overtly, but I think that they are
4 going to take the position that, hey, that was just
5 natural condition flooding. These are flood-prone
6 areas, but we have uncovered some documents that appear
7 to show that the Corps of Engineers believed that the
8 flooding was at least partly attributable to their water
9 management.
10 This model, which is the entire domain, included
11 a 2016 Tax Day run. We don't have the Upstream portion
12 of that. If that shows the model is putting water on
13 these models because of a rising reservoir pool, that's
14 highly probative of that issue.
15 MR. SHAPIRO: Well, then, Plaintiffs should
16 have -- if they thought it was highly probative, then
17 they should have modeled it, which they didn't.
18 THE COURT: Now, the Nairn deposition was Friday.
19 Is that correct?
21 THE COURT: Did you talk about that during the
22 Nairn deposition?
23 MR. EASTERBY: We did, Your Honor. We tried to
24 get into it, and I think that the foundation was
25 basically it's the same domain, the same model

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1 assumptions, it's included in Appendix C of the Upstream

2 report, but that was the extent of it, because I think
3 this is accurate, we don't have the actual Downstream
4 model of Tax Day, so we can't look at it. I think
5 that's accurate.
6 MR. IRVINE: That's correct.
7 THE COURT: All right. Well, you can
8 certainly -- we'll cover it.
9 MR. SHAPIRO: That's not part of the Upstream
10 report, Your Honor.
12 MR. SHAPIRO: It's part of the Downstream report.
14 MR. CHAREST: We want to have access to that.
15 THE COURT: Okay. This -- all right, this helps
16 a lot. The Court is a little better prepared.
17 Can we talk about -- well, I guess we can talk
18 about the pretrial filings at this point before we get
19 into the site visit. Are we ready to talk about the
20 pretrial filings?
22 THE COURT: All right. Let's do that.
23 The Plaintiffs' pretrial memorandum, exhibit
24 list, and witness list are due on Christmas Eve.

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1 THE COURT: You guys are diligent, and I say

2 "guys" without reference to gender. One of my female
3 law school classmates had a favorite saying, "Hey,
4 guys," she would say, and she had nothing related to
5 gender. It was not -- it just -- anyway... She was a
6 social director of our class. She later became an
7 assistant attorney general, so the Justice Department
8 had to put up with her in that respect. In any event,
9 but she's a delightful person, but let's just deal with
10 it.
11 You had talked a little bit about the pretrial
12 memorandum. We talked a little bit about the exhibit
13 list. We talked a little bit about some of the
14 disclosures that have to be made in that connection
15 after the meeting of counsel.
16 What other aspects can we talk about?
17 MR. EASTERBY: Well, Your Honor, we are more than
18 happy and will provide the witness list and exhibit list
19 and stipulations. It's really the memorandum of
20 contentions of fact and law, which is, I think, number
21 14 of Appendix A of this Court's rules.
23 MR. EASTERBY: And we were hoping that we might
24 be able to dispose of that for both parties, and, Your
25 Honor, of course, it's your decision, but in light of

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1 the extensive Rule 12 motion practice in this case, I

2 believe the Court and the parties have a pretty robust
3 understanding of the respective contentions and the
4 factual basis for those things, so if it is one less
5 thing that we can do, that would be great, but, of
6 course, we will take your instructions and proceed
7 accordingly.
8 THE COURT: The Court actually concurs, but,
9 Mr. Shapiro?
10 MR. SHAPIRO: It would be our position, Your
11 Honor, that we should stick with the rules and submit a
12 pretrial memorandum.
13 THE COURT: All right. Now, let's cover one
14 particular aspect of it. The Court doesn't need a book
15 because we, in effect, after trial will have post-trial
16 briefing in this case. That's fairly apparent. You
17 need to sketch out your case as a factual matter. You
18 need to sketch out the legal premises upon which you
19 rely. That's about it.
20 MR. SHAPIRO: From past experience with Your
21 Honor, I -- we will take that to heart.
22 THE COURT: All right. I mean, there might be
23 quirks that you've worked out that -- of which the Court
24 is not aware, and the Court would like to know about
25 that in advance. So that's not a problem, but you don't

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1 need to write a book. You can kind of stick with -- if

2 you can pack everything in 40 pages, it will help out.
3 MR. SHAPIRO: Yes.
4 THE COURT: You will actually get more attention
5 that way than if you wrote something more extensive,
6 because --
7 MR. EASTERBY: You will not get a book from us
8 either.
9 MR. SHAPIRO: Nor from us.
10 THE COURT: All right. You have other, better
11 things to be doing with your time, to be honest about
12 it. You actually have families, I'm sure.
13 MR. EASTERBY: That is a bit of the issue, Your
14 Honor, to be totally candid about it, but understood.
15 THE COURT: No, we understand.
16 MR. SHAPIRO: If I could ask another question
17 that I think is related to this topic, Your Honor, is
18 the question of exhibits and the Court's preference with
19 how we're going to be treating exhibits. We are
20 anticipating sort of an electronic presentation, but
21 does the Court want to have multiple copies of -- hard
22 copies of our exhibits?
23 THE COURT: Well, let's talk about that. I
24 confess to a physical frailty. I have difficulty
25 spending hours at a computer and like physical exhibits.

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1 My law clerks are not necessarily so predisposed. They

2 are young people, and they actually are inclined to
3 spend time at the computer and screens and so on and so
4 forth.
5 Ordinarily, we would ask that a copy be
6 provided -- a hard copy, unless we're giving them a
7 video or something like that, a disk, be provided to the
8 witness and at least one copy to the Court. We actually
9 ordinarily ask for two copies to the Court, but you can
10 work out the rest of it yourselves.
11 I had actually hoped that -- and that brings up
12 another topic that I was going to talk about in terms of
13 the trial aspect. I would hope that the parties could
14 have a set of joint exhibits, so you would have some JXs
15 and some PXs and some DXs, and that might -- not
16 necessarily that you'd stipulate to them, but that you
17 would identify some joint exhibits so we don't have
18 cross-numbering problems and that sort of thing.
19 MR. SHAPIRO: I imagine there will be quite a few
20 of those. It will just be a matter of combining them
21 after we talk about them.
22 THE COURT: Great.
23 MR. EASTERBY: Correct, Your Honor. We have been
24 keeping an exhibit numbering order in depositions, 1
25 through -- I think we're at 325 or thereabouts, so I

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1 expect those will probably be joint exhibits, and then

2 from that point, we'll be adding on respectively, with
3 the goal of having a joint exhibit list. We are happy
4 to submit a physical copy for Your Honor, a physical
5 copy for the clerk, and then I guess my typical practice
6 is for each witness, we would provide a notebook of the
7 exhibits we anticipate using for that witness, as well
8 as notebooks for the Court and the clerk if that's what
9 you would like. That's a lot of extra work, but I
10 understand it does help speed along things logistically.
11 THE COURT: It can, but I think that's part of
12 the problem, because we end up with a lot of paper in
13 that event.
14 MR. EASTERBY: We do.
15 THE COURT: Mr. Shapiro, do you have a
16 suggestion?
17 MR. SHAPIRO: That has always been my experience,
18 too. I mean, we will do whatever the Court wants us to
19 do, obviously, but if the Court wants to just have one
20 set put in three-ring binders and then it can just refer
21 to that, we're happy to do that.
22 THE COURT: Why don't we do -- let's plan on
23 that, because otherwise, in the number of exhibits
24 you're talking about, we could end up with a lot of
25 paper. Now, if you do have a witness that might have

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1 trouble with shifting back and forth between binders, if

2 you come up separately with a volume that's used for
3 that particular witness, that's fine, as long as the
4 Clerk would have a set of exhibits available for the
5 official trial record and the Court and Clerk would have
6 a set, and then the Court doesn't need to carry that
7 volume back.
8 MR. IRVINE: And, Your Honor, I've done a couple
9 of trials, bench trials with a lot of government
10 documents, federal documents, and I would really like to
11 avoid getting into arguments about authenticity and
12 hearsay, and so we will try to reach an agreement with
13 the Government about, you know, when a particular
14 document is produced and it has the seal of the Corps of
15 Engineers on it, then we are not going to argue about
16 its authenticity or its admissibility.
18 MR. SHAPIRO: We're glad to hear that.
19 THE COURT: Okay.
20 MR. SHAPIRO: Thank you.
21 THE COURT: But case management is going to be or
22 document management is probably going to be an issue.
23 We'll take it a step at a time.
24 Can we -- oh, I guess what we could do is talk
25 about the location of the trial here. I'm kind of -- I

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1 wanted to talk about the site visit before we actually

2 got to the trial topics, but Chief Judge Rosenthal has
3 very tentatively suggested that her courtroom might be
4 available, which is astonishing. I think that courtroom
5 is absolutely huge, but in any event --
6 MR. IRVINE: I agree, Your Honor. It's a very
7 nice courtroom.
8 THE COURT: It's a very nice courtroom, but she
9 says it's a possibility, so we'll take it. She's a very
10 precise lady, so we'll take that as a distinct
11 possibility, and if so, we're likely to have the same
12 court for a couple of weeks, and that might help the
13 parties' planning a little bit.
14 MR. IRVINE: Yes, Your Honor.
15 MR. CHAREST: Can we ask -- I don't know if the
16 Court knows, but does that courtroom have breakout rooms
17 for each side generally?
18 THE COURT: That is not something I know about.
19 MR. CHAREST: Yeah.
20 MR. EASTERBY: Charles says they do.
21 THE COURT: Mr. Irvine, do you know about that?
22 MR. IRVINE: They do have some attorney rooms on
23 that floor, yes.
25 Mr. Shapiro, do you know about that?

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1 MR. SHAPIRO: I don't.

2 THE COURT: I'm sorry. It's news to me, but...
3 MR. CHAREST: Should we check with Judge
4 Rosenthal's staff about the logistics of, you know,
5 having us take over space in the courtroom or should we
6 go through your staff to do that, sir?
7 THE COURT: She has a scheduler. The name of
8 this person I have forgotten, but -- hmm, I should have
9 made a note of that, but in any event, that's the person
10 to talk with about it. But it's not that she doesn't
11 have other matters during that couple of week period,
12 but she had -- I mean, don't take this as absolute
13 gospel, but she had indicated that as far as she knew,
14 the things that she had during that period she could do
15 in another courtroom. I don't know if it makes a
16 difference to you or not. It probably does if there are
17 breakout rooms, because then you have an easier time
18 with witnesses.
19 MR. CHAREST: So we'll get the logistics worked
20 out with --
21 THE COURT: Yes, check with her scheduler or her
22 staff.
23 MR. SHAPIRO: You know, while we're on that
24 topic, I don't know that this will be an issue with the
25 Plaintiffs, and we've discussed it on my team, but as

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1 far as exclusion of witnesses during trial, does the

2 Court have a preference on that?
3 THE COURT: The Court ordinarily applies Federal
4 Rule of Evidence 614 if the parties request it.
5 MR. SHAPIRO: Thank you.
6 THE COURT: Of fact witnesses, not experts.
7 MR. EASTERBY: And, Your Honor, I don't think the
8 Plaintiffs have an issue with that as long as the
9 Plaintiffs and their respective spouses, as well as
10 engaged testifying experts, are excluded from the rule,
11 which I believe is common practice, and also, here
12 again, in St. Bernard Parish, I believe you addressed
13 that with a paragraph, and our intent was to use that
14 exact same language, so hopefully that will be something
15 we can work out.
16 THE COURT: All right. Well, let's talk a little
17 bit about that, because the owners or occupiers, lessees
18 if there happen to be any, of the test properties might
19 be subject to exclusion during the testimony of other
20 property owners. Do the parties have a view on that?
21 They are Plaintiffs in the case, and they ordinarily
22 would be entitled to be present.
23 MR. EASTERBY: Your Honor, I'll speak just from
24 personal MDL-type experience, when we have bellwether
25 trials, all of the bellwether Plaintiffs have been

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1 allowed to attend the entire trial.

2 THE COURT: Right. That would be the ordinary
3 effect of the rule. There might be something peculiar
4 in this particular case. I am not aware of anything.
5 MR. EASTERBY: We can look at the manual for
6 complex litigation to see if it provides any further
7 guidance on that, and hopefully we can reach agreement
8 on that. Our preference would obviously be that the
9 Plaintiffs, the owners of these properties, be allowed
10 to be here for the entire trial.
11 MR. SHAPIRO: That would be pretty unusual from
12 our --
13 MR. CHAREST: That would be pretty unusual from
14 what I --
15 THE COURT: Mr. Shapiro, you probably don't --
16 MR. SHAPIRO: Well, I think that's something we
17 can discuss with my our team.
18 THE COURT: Okay. That is not an issue I had
19 looked at in advance. It's just that when you have
20 bellwether trials, you can end up with wrinkles that are
21 not -- you know, obviously, you might have a difference
22 between Plaintiffs or something like that, and -- it
23 could happen. Let's -- we'll just see what the parties
24 come up with.
25 All right. Let's talk -- shall we -- can we move

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1 to the site visit?

2 MR. IRVINE: Yes.
3 MR. SHAPIRO: Yes, Your Honor.
4 THE COURT: The Court -- well, Mr. Shapiro and
5 the Court have had experience with this exercise. The
6 Court will not have a site visit without a court
7 reporter present, and the Court will ask that anything
8 that is said to the Court -- well, except for moving
9 around and that sort of -- ministerial matters -- be on
10 the record.
11 In other words, the implication is that there
12 actually is a receipt of testimony during the site
13 visit, and what the Court would ask is that the parties
14 designate witnesses to speak, because those witnesses
15 ought to be sworn before or at the site visit so they
16 can testify.
17 MR. IRVINE: And when you say "witnesses," are
18 you referring to test property Plaintiffs or --
19 THE COURT: Well, it could be, or it could be
20 your experts introducing the setting, if you will. I'm
21 trying to find the right word, because I take it we will
22 be looking at the gates and the dams and the overflow
23 structures and that sort of thing and maybe even some
24 tributaries, but that's up to the parties.
25 It's just that when I -- when I say that the --

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1 you ought to have designated witnesses to speak at these

2 things, then that testimony -- that actually is
3 testimony, and what the -- and you have to remember that
4 what the Court sees is also evidentiary. In other
5 words, I -- what you show me is actually evidence.
6 MR. IRVINE: And, Your Honor, I'll just say that,
7 you know, we did a site visit with the Corps of
8 Engineers, our experts, and some other counsel, and I
9 think it can be done in under a day. It's not a
10 difficult thing to go around these areas. So, I'm just
11 trying to understand, you know, what is your
12 anticipation of how much you want to see, how long you
13 think it might happen, and is that going to take up a
14 day of trial or is that going to be before or after
15 trial?
16 THE COURT: Well, that was a little bit of the
17 difficulty the Court had. Ordinarily, you introduce the
18 topics that are going to be covered at a site visit by
19 trial testimony first, so you've essentially done what
20 you can through precipient or expert witnesses to
21 essentially provide the context.
22 Well, in this particular case, I take it in the
23 Downstream scenario, there's been some sort of agreement
24 that the site visit will be on the 19th, and it will be
25 joint.

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1 Ms. Tardiff?
2 MR. IRVINE: That is literally the first time we
3 have heard of that, Your Honor.
4 THE COURT: Well, it's not the first time the
5 Court's heard of it.
6 MS. TARDIFF: Well, I would stop short of saying
7 there's agreement. What we discussed with Judge Braden
8 at our last Downstream hearing, she inquired about doing
9 the joint site visit, and I believe her thinking was
10 that the visit to the facilities, of course, the
11 facilities, the dams, the gates, those structures, could
12 occur as one site visit, and she was interested in
13 joining the Upstream site visit for that purpose, and it
14 was discussed that there was a possibility of doing it
15 jointly in the morning at those facilities, and then
16 separating out to the extent that the site visits for
17 each case would include, for example, the Upstream
18 properties, that occur in the afternoon, and the
19 Downstream, where we would break out. So that was what
20 was discussed.
21 I say it's short of an agreement because
22 obviously that requires coordination with Your Honor.
23 THE COURT: Well, it requires a little more than
24 that, but in any event, I was surprised. Let's put it
25 that way. That was not something I had anticipated.

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1 MS. TARDIFF: And I think at the last conference

2 we had with Judge Braden, we said we would raise that
3 with you I think at this conference.
4 THE COURT: Well, I was hopeful -- I'm sorry, Mr.
5 Shapiro or Ms. Tardiff?
6 MS. TARDIFF: Mr. Shapiro is reminding me, Judge
7 Braden may also have said she was going to discuss it
8 with you as well.
9 THE COURT: She did, she mentioned it, so that's
10 why I knew about it. That's why I included it among the
11 topics to talk about today. To me, it's a complication,
12 because there are a lot of things I don't need to know
13 about Downstream, I just don't, and, in fact, I'm not
14 even sure that all that many of the Upstream properties
15 the Court needs to look at as far as part of the site
16 visit.
17 MR. IRVINE: Your Honor, we would probably agree
18 with your perception of that. We think that having at
19 least Dr. Bedient there to kind of explain the function
20 of the dams, but I don't think there's much in the way
21 of the Downstream portion of the dams that you need to
22 consider at all, and we don't think actually that we --
23 too many of our test property Plaintiffs need to be
24 there for the site visit either. Like, we could look at
25 those houses. You can see the situation. I think

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1 it's -- it's --
2 THE COURT: Well, you might have a couple of
3 them, but in any event, there's -- if you know that two
4 or three of the test properties are going to be --
5 Upstream test properties are going to be at issue in
6 terms of propensity for flooding, then they might be
7 included, or if there's a property that was affected by,
8 say, the Tax Day event, then that might be included, but
9 the Court was hoping that we could have a morning or
10 half a day, and an official from the Corps of Engineers
11 actually to testify about how they run the dams, and
12 then some experts or other people. But, you know, this
13 is not something that we need to, I guess, cover
14 excruciatingly.
15 MS. TARDIFF: Absolutely, Your Honor, and I don't
16 want to speak for Judge Braden, but my understanding,
17 what I took away from our last conference with her, was
18 exactly that, that she thought it would be more
19 efficient if we were having a site visit on the first
20 day of trial for the Upstream case that included
21 visiting the dams and the gates and kind of have one
22 person just give a description of what we're seeing,
23 that it might be more efficient for her to join that as
24 opposed to doing that again for the Downstream case. So
25 that's what was on the table, but obviously --

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1 THE COURT: Would you agree with that?

2 MS. TARDIFF: It's -- it's the same dam, the same
3 structure, the same facility, so I --
4 THE COURT: Well, if you object, we are not going
5 to do it. It's that simple, or if Mr. Shapiro objects.
6 MR. IRVINE: Your Honor, I mean, from our
7 perspective, it's more important that you see the
8 backside of the dams, the neighborhoods.
9 THE COURT: No, I understand from your -- the
10 legal theory of your case, I understand that.
11 MR. IRVINE: Right.
12 THE COURT: But that's why I suggested a
13 limited -- a very limited slice, if you will, or
14 selection among the test properties. We might be able
15 to do this in a half a day. I don't know how long it
16 takes to get from here to the dams at all.
17 MR. EASTERBY: About an hour, Your Honor. I'll
18 tell you --
19 THE COURT: It takes an hour to get there?
20 MR. EASTERBY: This is giving me massive
21 heartburn, because the allotment of trial time, if we
22 lose a half a -- I don't think we can do it in half a
23 day with just driving back and forth. If we lose the
24 19th to this site visit, that has major implications in
25 terms of trial hours allotted to the parties. So I know

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1 that Monday is President's Day, I don't know if that

2 forbids the use of that day, but --
3 THE COURT: Well, it doesn't, but we could have
4 some other issues.
5 MR. IRVINE: Is it possible to do the site visit
6 on the weekend between trial days? I don't know if
7 you're planning on traveling back to --
8 THE COURT: I was.
9 MR. IRVINE: I don't want to take up your
10 weekend.
11 MR. CHAREST: Well, from my perspective, I look
12 at it like this. It's important for the Court to see
13 the neighborhoods, to understand when they tell you we
14 lived in a neighborhood, with a school, like every
15 suburban neighborhood in the country, you understand
16 what they're talking about. So I would rather you
17 see that beforehand so when you're hearing the context
18 of -- this notion that they're still just -- we were
19 going to flood all the time --
20 THE COURT: Well, let's stop and think about this
21 a minute.
22 MR. CHAREST: And we can do it on the weekend, we
23 can do it the weekend before, we can do it at any time.
24 I am resistant to the notion of doing them both at once,
25 because I don't think you need to see whether the gates

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1 open this way or that way. I don't find that

2 particularly instructive to the Court's case.
3 THE COURT: Well, it's your case. It's not mine.
4 MR. CHAREST: Yes.
5 THE COURT: So I'm trying to be as neutral as
6 conceptually possible on this exercise.
7 MS. TARDIFF: Absolutely. What I would suggest,
8 Your Honor, is I think we have the meeting of counsel
9 coming up, and I think the parties can kind of sit down
10 and put together a list of, you know, what each of us
11 thinks we would like Your Honor to see at a site visit
12 to kind of help understand the testimony that's going to
13 come in over the two weeks.
14 THE COURT: Well, do you mind --
15 MS. TARDIFF: If we got that list, we could kind
16 of map it out and have a better sense as to how long
17 that's going to take.
18 THE COURT: All right. I suppose conceptually we
19 could actually have the site visit on the 18th, which is
20 President's Day or Washington's -- yeah, it is,
21 Washington's Birthday or President's Day, and that would
22 alleviate a little bit of concern, so we wouldn't be --
23 the Court really had in mind half a day, but if the
24 transit time is significant --
25 MR. CHAREST: Logistically, I don't think

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1 that's --
2 THE COURT: It's significant?
3 MR. CHAREST: Logistically, I think it takes a
4 day by the time you take out there, it will be 10, you
5 know, then you get set up, you go from one place to
6 another. The arc of these two reservoirs are pretty
7 long, so even transiting from Addicks to Barker, you
8 know, if you want to see two in each place --
9 THE COURT: That's up to counsel. I mean, I'm --
10 MR. CHAREST: But my point is that that's going
11 to take more than, I think, just a half a day, even just
12 because of logistics.
13 THE COURT: All right. Well, I don't know how
14 Mr. Shapiro and Ms. Tardiff conceive of this, but is
15 actually doing the site visit on President's Day a
16 possibility?
17 MS. TARDIFF: Well, Your Honor, I think we want
18 to confer with the Corps and make sure we have the
19 staffing, because if we're going to be driving up on the
20 dam structures, we certainly may need to have official
21 vehicles to do that.
23 MR. CHAREST: I have done it without official
24 vehicles before.
25 MS. TARDIFF: Yeah. We just want to make sure

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1 that we have the staffing available that day.

2 THE COURT: Well, I really am concerned about
3 trial time and logistically handling this. I really was
4 concerned about doing it at the outset of trial. On the
5 other hand, it might make it easier. I don't know. I'm
6 not used to it in that context, but if you think you can
7 handle it at the outset, we could -- I'm sorry?
8 MR. IRVINE: We will try and make that happen. I
9 think it would be helpful to the Court to see the
10 structures. I know you haven't been out there, Your
11 Honor.
12 THE COURT: I have not.
13 MR. IRVINE: To see the structures before trial,
14 because then it will put everything into context.
15 THE COURT: Well, during -- at the outset of
16 trial.
17 MR. CHAREST: At the outset, it will be the first
18 day of trial.
19 THE COURT: At the outset, and we can do it, as
20 long as -- it would be a burden to come to the Court and
21 have the courthouse open on that day, but on the other
22 hand, if we were to do the site visit on President's
23 Day, we could actually swear the witnesses who are going
24 to be talking out there, and I'm sure we can get a court
25 reporter. So we could take care of that problem.

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1 MR. CHAREST: Let's do this. Understanding that

2 the Court is willing to do it that day, let us --
3 THE COURT: Well, I'm just concerned about your
4 trial time as well.
5 MR. CHAREST: Well, I totally agree with you, but
6 if that is available to us, let us confer about how best
7 to put that into evidence, if that's okay.
8 THE COURT: Mr. Shapiro?
9 MR. SHAPIRO: Yes, Your Honor.
10 THE COURT: You have views, I know.
11 MR. SHAPIRO: No. I think that makes sense.
12 We'll certainly talk to Plaintiffs and see if we can
13 come to some agreement. I am sort of left with the
14 question, though, does Your Honor want to relay this
15 discussion to Judge Braden or --
16 THE COURT: Oh, I can do that.
17 MR. SHAPIRO: The idea of doing it jointly I
18 think was not necessarily ours, but --
19 THE COURT: It wasn't mine.
20 MR. SHAPIRO: I know it wasn't Your Honor's, but
21 we're glad to -- you know, I guess if you are going
22 to --
23 THE COURT: I don't mind, but it's just that a
24 lot of what Judge Braden might want to see, I am not --
25 I just am not going to be involved with.

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1 MS. TARDIFF: Agreed, Your Honor, and I think the

2 way she had proposed it to us I think was that what --
3 when we were touring the facilities, if that was
4 occurring in the morning, there would be efficiencies
5 perhaps in combining that, joining on that part of the
6 tour, and then I think she envisioned perhaps breaking
7 off, and whatever additional facilities needed to be
8 looked at for Downstream, that would be done separately.
9 THE COURT: That makes sense. Let's try. I will
10 talk with her, but if the parties -- well, let me -- let
11 me talk about one other thing. The Court is not used to
12 the Houston area. I have been here a few times, but
13 does the -- you know, I am not somebody who comes here
14 regularly, let's put it that way, and I never have.
15 MR. SHAPIRO: You are visiting at the right time
16 of the year.
17 THE COURT: I saw somebody --
18 MR. SHAPIRO: We can all agree with that.
19 THE COURT: I saw somebody in an overcoat this
20 morning, and I had to smile. To me, it was warm, but in
21 any event, we had -- well, we heard that it was quite
22 cool here in Houston in the circumstances, but I think
23 we're all agreed that this is an appropriate time to do
24 this.
25 But -- well, I don't know about from the case

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1 preparation standpoint, but from a weather standpoint,

2 it is. But if the parties could confer, I will confer
3 with Judge Braden, and if you would then file a notice
4 with the Court as to whatever you've developed as a
5 consensus, if any, that would be appreciative. Would
6 you, please?
7 MR. EASTERBY: Yes, sir, we will, and one final
8 question on this point. Does Your Honor have any
9 interest in doing a site visit of those portions of the
10 incoming tributaries that extend onto government-owned
11 land, because as I understand it, we have to get consent
12 of the Corps or the Federal Government to set foot on
13 the land, and we cannot control that.
14 MR. SHAPIRO: Well, I mean, that's something we
15 can talk about. I mean, I think if -- particularly if
16 we are going to go on top of dams, we are going to need
17 to have the Corps involved in this, so we will certainly
18 discuss that.
19 THE COURT: Well, and especially on a holiday,
20 but you can work that out, as I'm sure the Corps would
21 be available or officials of the Corps, if it would
22 simplify their lives as well, but -- and they would
23 realize that.
24 MR. IRVINE: And, Your Honor, the tops of the
25 dams, they're bicycle paths, right?

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1 THE COURT: Bicycle paths?

2 MR. IRVINE: Anybody can go up there and cycle on
3 the tops of the dams.
4 THE COURT: Well --
5 MR. IRVINE: I'm not sure it's going to be a
6 problem.
7 MS. TARDIFF: We weren't anticipating putting
8 Your Honor --
9 MR. IRVINE: I wasn't suggesting you need a
10 bicycle, Your Honor. I was just saying they are
11 publicly available.
12 THE COURT: All right. Let's talk about
13 vehicles, because the Court would not welcome the
14 prospect of getting a rental car and driving out there.
15 If the parties could arrange for a van or something that
16 would carry some of you and us, that is, my Law Clerk
17 and myself, that would be helpful. Could you do that,
18 please?
19 MR. SHAPIRO: Yes, Your Honor. I mean, there are
20 locked gates up there that the Corps will have to open
21 up for us --
23 MR. SHAPIRO: -- but we will make that happen. I
24 will talk with my --
25 MR. EASTERBY: Your Honor, we're happy to make

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1 arrangements for having a suitably large van and a court

2 reporter to do the actual logistics of this tour, so we
3 will take care of that.
4 THE COURT: Okay. We had -- I'm sorry, but to go
5 back to some of the prior cases I've had, I've walked on
6 rails to trails, I've walked on a number of trails, but
7 as Ms. Tardiff knows, but in any event, I have actually
8 been on the Black River in Northeastern Arkansas and
9 lost a hat, but recovered the hat, on a boat on the --
10 MR. SHAPIRO: That was the best one.
11 THE COURT: Yes, but in any event, we have had
12 experiences. So this will be entertaining for everybody
13 concerned.
15 THE COURT: That's actually helpful, but I will
16 look forward to hearing from the parties as to your
17 preferences and whether you've worked out a consensus.
18 But, again, we can swear witnesses out there on
19 the -- out there on the site visit before we hear any
20 testimony at all, because we want it all on the record.
21 We don't want any parts not on the record.
22 Okay, all right.
23 MR. EASTERBY: So, Your Honor, in terms of filing
24 the notice of that site inspection, would you like that
25 to be done in around Christmas Eve or --

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1 THE COURT: It's up to you. As soon as you can

2 do it and reach a consensus, you have other things to be
3 doing, but this is a topic that you need to cover,
4 because it will affect the trial time.
6 THE COURT: You know, we talk about trial time
7 and trial arrangements. We've opened the subject a
8 little bit in terms of the possible courtroom, and it's
9 still a little early to confirm a courtroom, but in any
10 event, Chief Judge Rosenthal has already had thoughts on
11 the subject.
12 I had in mind a time for each side if we start
13 actually hearing testimony in court on the 19th, running
14 through the 1st of March, because we've been promised
15 a -- which is amazing given all the circumstances -- a
16 courtroom for those two -- essentially nine days, but
17 essentially two weeks, and I do set times for testimony,
18 and you've seen enough of the pretrial orders that you
19 kind of know what the ballpark is.
20 Would you want opening statements?
22 THE COURT: How long?
23 MR. EASTERBY: Your Honor, I would say no longer
24 than 30 minutes.
25 MR. SHAPIRO: That would be fine with us.

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1 THE COURT: All right. And then with post-trial

2 briefing, once we take the final bit of testimony,
3 that's it, we don't -- we will have a closing argument
4 in due course. I had in mind two particular hours per
5 side, and it kind of -- it depended a little bit on what
6 happened with respect to the site visit. I had in mind
7 26 hours a side if we had to schedule the site visit on
8 the 19th or sometime during the trial, actually in
9 court, and 29 hours a side if we were able to schedule
10 it on the President's Day.
11 MR. EASTERBY: And, Your Honor, I -- in my draft
12 pretrial order, I put 30 hours a side, so we're very
13 close, and I'm sure we can work out --
14 THE COURT: Well, if we do President's Day, I
15 wouldn't -- I'd be comfortable with 29 hours a side.
16 MR. EASTERBY: Your Honor, I think that's fine
17 and fair, as long as the Defendant's portion of
18 questioning a witness counts against their side. In
19 other words, if I call adversely my first witness, a
20 Corps of Engineers witness, and I spend two hours, and
21 then they have two hours of redirect or cross, their two
22 hours would count against their time, not my time.
23 THE COURT: Yes, exactly. In other words, if you
24 spend time examining a witness, that's your time. It
25 can be an adverse witness, it can be a friendly witness.

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1 MR. EASTERBY: Fair enough.

2 THE COURT: And the same applies to Mr. Shapiro
3 and his colleagues.
4 MR. CHAREST: This is the trial I did last week,
5 the same thing every day, just synced up and made sure
6 each one's time was correct at the end of the day and
7 moved forward.
8 THE COURT: Well, actually, one thing about it is
9 is that my clerks get used to running the timers, and
10 they will have available the running count on the time
11 to provide to counsel, and we'll definitely do it at the
12 end of the day so that everybody's aware of what's going
13 on.
14 MR. EASTERBY: Understood.
15 THE COURT: I was about to say something about --
16 the Court's -- as you're aware, the Court will ask
17 questions. I just know I will. I have an inquisitive
18 enough spirit that I will just ask some questions, and I
19 will try to keep it to a minimum, but in any event,
20 those don't count against either side and the time the
21 witness spends answering those questions don't count
22 against either side.
23 Now, we'll talk about objections. If there is an
24 objection as something that's addressed quickly, then
25 that -- we will just keep going on time. If there's a

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77
1 discussion or an argument on an objection, then that

2 time is -- that argument time is excluded as well.
4 THE COURT: And the opening statements are
5 excluded. So that's where I got to 29 rather than 30.
6 MR. SHAPIRO: Makes sense, Your Honor. I believe
7 we anticipated something like that. It might be useful
8 to hear -- there's a possibility, I suppose, of some
9 overlap of witnesses that either side might be intending
10 to call. If the Court wanted to sort of hear what the
11 current thinking of the parties were in terms of fact
12 witnesses, that might help inform this.
13 THE COURT: Well, I did have the thought that you
14 might have jointly called witnesses, and the Court, as
15 you can tell from the prior pretrial orders, would
16 prefer to have that witness' testimony just covered at
17 one sitting. And to be honest about it, I really don't
18 care the order either, because it's a bench trial, and
19 it is what it is. This case is not going to go away
20 necessarily. You're not going to settle it. So we're
21 going to hear it. So you don't necessarily need to
22 worry about order either. If a witness has -- is
23 ostensibly out of turn, if you will, or -- it's up to
24 you. You can schedule witnesses for your convenience
25 and the witness' convenience.

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78

2 MR. EASTERBY: Understood.
3 THE COURT: It's just -- it's not a problem. You
4 know, it's not like you're giving a presentation to a
5 jury or a judge who hasn't been around this place
6 before, and so, you know, I'm not going to worry about
7 hearing a defense witness right in the middle of
8 Plaintiffs' case and vice versa. That's just not going
9 to be a problem.
11 THE COURT: All right. I don't know how they run
12 it in Texas.
13 MR. IRVINE: Bench trials are very similar.
14 MR. EASTERBY: All different ways, Your Honor,
15 but I think that a bench trial is exactly as you've
16 articulated. It doesn't matter as much, and I think
17 efficiency is the overarching goal.
18 THE COURT: All right. Yeah, this is going to be
19 a complicated trial, and the Court understands that, and
20 I'm trying to help the parties out insofar as it's
21 possible to make -- to get the evidence you want in and
22 the context you want, but without causing trouble for
23 each other and the Court for that matter. I'll put up
24 with a fair amount, but hopefully still keeping a smile
25 on my face.

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1 MR. IRVINE: Understood, Your Honor.

2 THE COURT: Okay. Can we -- anything else about
3 the trial? Oh, I don't know what the custom is here in
4 this Court on starting times. I forgot to ask. I was
5 going to ask this morning on start time and closing
6 time. What is the -- what is the custom?
7 MR. EASTERBY: Your Honor, my experience has been
8 that we typically would start right around 9:00 a.m.,
9 typically, always with a jury, you have lengthy lunch
10 breaks, and if it's a bench trial, maybe more like 45
11 minutes or an hour, but I was thinking about 9:00 to
12 5:30 as a trial day, and I think that's fairly
13 customary, at least for this federal court.
14 MR. CHAREST: We would be willing to bleed over
15 if there's a witness that doesn't get done in a day or,
16 you know, that kind of thing.
17 THE COURT: Well, let's say 9:00 to 5:00, and if
18 we run over, as long as the Court is open after 5:00 --
19 MR. CHAREST: It is.
20 THE COURT: -- because I've tried cases in places
21 where the Court closed at 4:30, so, I mean, you never
22 know. I just thought I'd ask.
23 MR. EASTERBY: Right. Well, that's usually a
24 function of court personnel, the tip staff or whatnot,
25 and any of these overtime rules, but I don't think we

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1 run into that issue here. The only folks I guess that
2 would impact would be the Court, the Clerk, and the
3 court reporter. So other than that, we should be in
4 good shape.
5 THE COURT: All right. What about a 9:00
6 starting time rather than a 9:15 or a 9:30? I don't
7 care about that.
8 MR. CHAREST: Yes, that's absolutely fine, Your
9 Honor.
10 MR. IRVINE: We're good with 9:00.
11 THE COURT: Mr. Shapiro, do you --
12 MR. SHAPIRO: That does work for us.
13 THE COURT: Which?
14 MR. SHAPIRO: 9:00.
15 THE COURT: 9:00? That gives us a little more
16 flexibility, so that's fine with me.
17 Okay, all right. Let me just check my notes.
18 I think we're good, to be honest about it.
19 MR. SHAPIRO: Nothing else from the United
20 States, Your Honor.
21 THE COURT: Pardon?
22 MR. SHAPIRO: Nothing else from the United
23 States.
24 THE COURT: All right. That's a surprise.
25 Mr. Charest?

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1 MR. IRVINE: Nothing else from Plaintiffs, Your

2 Honor.
3 MR. CHAREST: Nothing further from us.
4 THE COURT: Mr. Easterby?
5 MR. EASTERBY: I believe that's it, Your Honor.
6 We'll endeavor to, with defense counsel, come up with a
7 pretrial order and try to get that submitted as well in
8 or around the Christmas Eve time period. I think that
9 would help everybody's preparations.
10 THE COURT: I must say, the Court really
11 appreciates the fact that counsel have worked with each
12 other to ease the path of this exercise, and it has made
13 a difference, obviously, and we hope you continue to do
14 that. We certainly expect that. It will make all of
15 our lives a little easier.
16 Okay. Thank you very much. We're in
17 adjournment.
18 (Whereupon, at 11:42 a.m., the proceedings were
19 concluded.)
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1 CERTIFICATE OF TRANSCRIBER
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4 I, Susanne Bergling, court-approved transcriber,
5 certify that the foregoing is a correct transcription
6 from the official digital sound recording of the
7 proceedings in the above-titled matter.
8
9
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11 DATED: 12/12/2018 s/Susanne Bergling
12 SUSANNE BERGLING, RMR-CRR-CLR
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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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1 MR. VUJASINOVIC: Yes, Your Honor.

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1 In this courtroom -- I'm not used to this

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1 witnesses, that sort of thing.

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1 strike that, December 19th, and I believe the meeting of

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1 spoke on the issue of Harvey rainfall and a few other

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1 THE COURT: Right.

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1 don't envision any issues in terms of getting agreement

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1 MR. CHAREST: I misspoke, Your Honor. It's seven

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1 on Friday issued rebuttal reports for Dr. Sager, who is

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1 Dr. Bell, I believe his deposition is set for January

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1 Industries, and he oversaw an effort to attempt to

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1 flood in a Harvey-like event.

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1 actual Harvey event, the situation in which the federal

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1 developments into the reservoirs, there would have

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1 the mold issue, which was a concern during the event.

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1 reasons for why those plaintiff properties may have

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1 damages, just to the severity issue. He has come up

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1 In Control Technologies. He will basically rebut the

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1 presentation was the timing of the expert depositions.

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1 THE COURT: Oh, all right.

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1 MR. CHAREST: We really haven't gotten together

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1 they're agreeing and admitting that all of the test

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1 Court likes to have stipulations in hand -- and this I

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1 was to try to use the Arkansas Game & Fish pretrial

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1 rules a provision that requires advance notice if you

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1 MR. SHAPIRO: But it would help, you know,

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1 THE COURT: Right. It's much preferred.

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1 MR. SHAPIRO: And we will endeavor to do that.

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1 produced underlying files of the NOAA imagery. I think

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