Shared from the 10/7/2017 Houston Chronicle eEdition

Judge vows swift justice in lawsuits over releases from Addicks, Barker

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Michael Ciaglo / Houston Chronicle file

Trucks were submerged on Pine Cliff Drive when Addicks Reservoir neared capacity due to heavy rains from Hurricane Harvey on Aug. 29.

The nation’s top federal claims court judge — who ruled for property owners in a contentious lawsuit following Hurricane Katrina — pledged Friday to move swiftly in deciding how to proceed with the dozens of lawsuits already filed over flooding from the Ad-dicks and Barker reservoirs west of Houston.

Urging victims to “trust their lawyers, trust the judicial system,” Chief Judge Susan G. Braden of the U.S. Court of Federal Claims in Washington, D.C., said she would consider consolidating at least some of the 46 lawsuits brought so far by residents and business owners whose properties were flooded upstream by the backed-up reservoirs or downstream by controlled releases from the dams following Hurricane Harvey.

“This is a critically important case for Houston,” Braden said during a packed court hearing Friday at the Houston federal courthouse.

Braden said proceeding expeditiously in an orderly manner is vital with an event of this magnitude.

One possibility raised by the judge would be to divide the lawsuits by whether property owners flooded upstream and downstream, and she indicated she might appoint a team of lead lawyers with the help of Houston’s chief federal judge.

Historic rains in the Houston area from Hurricane Harvey overloaded the two reservoirs, threatening the earthen dams constructed in the 1940s by the U.S. Army Corps of Engineers.

Logistics for 46 lawsuits

The lawsuits filed in the federal claims court accuse the government of knowing homes and business would flood if they let water out of the dams or failed to release it soon enough, for the upstream property owners.

The so-called “takings” claims are similar to eminent domain cases, with owners contending the government made a conscious choice to flood their property and should compensate them for damages.

During the hearing Friday, Braden mentioned her involvement in a case in St. Bernard Parish in Louisiana, in which she ruled in 2015 that flooding during Hurricane Katrina’s storm surge amounted to a temporary taking by the U.S. Army Corps of Engineers.

Rather than requiring dozens of lawyers to fly to Washington, D.C., for the hearing, the judge came to the Houston federal courthouse on Rusk Street, where five government lawyers faced at least 70 private attorneys crowded around counsel tables, into an overflowing jury box and into the first three rows of seats in the spacious courtroom.

The hearing focused on the logistics of proceeding with the 46 lawsuits the judge is aware of, as well as others she expected would follow in the coming months and years.

At one point during the two-hour hearing, attorney Adam Pulaski asked the judge if she had encouraging words for their clients, who are now contending with the devastation of flooding.

“We have one of the best justice systems in the world,” Braden said. “Tell them to trust their lawyers, trust the judicial process.”

Braden explained she wasn’t going to make any decisions Friday but wanted to discuss general ideas about how the cases could proceed smoothly. Several lawyers needed to be sworn into the claims court bar in order to practice in her court.

Several lawyers familiar with the claims courts said after the hearing it will be essential for them to figure out how to consolidate the cases and proceed with discovery — the collection of documents and depositions of witnesses.

Figuring the splits

In addition to possibly splitting the cases between upstream and downstream, Braden discussed splitting them up by individual claims and class-action suits.

Finally, she said she would ask for some procedural help with the overflow of cases from Chief U.S. District Judge Lee H. Rosenthal, whose courtroom she was using for the day and whom she identified as a close family friend. She told the assembled crowd she planned to ask Rosenthal, who is much more familiar with Houston area lawyers, to help identify lawyers who could take on the role of lead counsel for the larger groups of cases.

Braden said she planned to speak with Rosenthal on Tuesday. She said the next big gathering for the lawyers would likely occur in Houston the week after the Thanksgiving holiday. Property owners have six years to file lawsuits over claims.

She invited David Harrington, one of three Justice Department lawyers from Washington who appeared with two attorneys from the Galveston office of the Army Corps of Engineers, to address how to organize dozens of complaints that have poured in since the flooding.

“Our primary concern in the longer term is to ensure there is a coordinated and consolidated discovery process,” Harrington said.

Suggestions from lawyers

The judge also opened the floor to any of the lawyers who filed claims, asking if they’d like to speak.

Attorney Luke Ellis, one of 11 lawyers who addressed the judge, said he supported splitting the cases into upstream and downstream groups.

Eric R. Nowak, an attorney for an individual flooding case, said he disliked the suggestion by others that the class-actions should move forward while the court postponed action on the individual cases.

A number of lawyers made procedural suggestions to the chief judge.

“I’d like to recommend some sort of overarching leadership for the plaintiffs,” said Derrick Potts, one of the first lawyers to file a lawsuit on behalf of people flooded from the dam releases.

“This is my fifth hurricane that I’ve handled,” said Rene M. Sig-man, a regional litigation manager at Merlin Law Group in Houston, who dealt with Superstorm Sandy and Hurricane Ike cases. She suggested that the lawyers streamline the process and come up with a master discovery plan if they want results quickly for their clients.

Some of the lawyers expressed gratitude to the judge for coming to Houston so quickly. Braden said it is not unusual for judges on her court to travel to the areas where lawsuits are filed.

“I felt the sooner I’m here to show the courts are going to be here ... the better,” she said. gabrielle.banks@chron.com

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