Hurricane Katrina Suit Tests Government Liability

April 20, 2009— -- The victims of Hurricane Katrina, their lives uprooted and homesteads washed away, will finally get their day in court today as a landmark trial opens in New Orleans to consider whether the government made a deadly storm even worse.

The accused culprit in this legal dispute is nicknamed Mr. GO, the Mississippi River Gulf Outlet that the federal government cut through 76 miles of swamps and cypress forests to make shipping easier between the Crescent City and the Gulf of Mexico.

The people who filed the lawsuit -- six survivors of the area's hurricanes -- claim Mr. GO magnified Katrina's power by destroying wetland buffers and funneling wind-whipped water into the city.

"It has been a catastrophe ever since it was built," said John Andry, the lawyer for the plaintiffs in the case.

But the government argues that it cannot be sued over Mr. GO, claiming protection under a 1920s federal law and the principle of sovereign immunity. Besides, there was nothing seriously wrong with Mr. GO -- and little that could have lessened Katrina's destructive power, say the government's lawyers.

"The catastrophe would have occurred regardless of the MRGO and regardless of the way the channel was maintained prior to the flood," the lawyers wrote in their legal brief.

The stakes are unprecedented: If the plaintiffs win, tens of thousands of other Katrina victims will likely win their lawsuits as well, making the federal government liable for up to $100 billion in damages, according to Army Corps of Engineers estimates. That would be more than any court judgment in U.S. history, according to legal experts.

That the case has made it this far is itself extraordinary. Over the almost four years since Katrina hit, dozens of lawsuits seeking damages for broken levees and other failed hurricane defenses have foundered on the government' defense of immunity.

The federal Flood Control Act shields the government from liability for defective flood-control projects. And another law says the government can't be sued for acting with reasonable care or making a judgment call.

But the victims in this case say none of that matters. They argue that Mr. GO is a navigation canal, not a flood-control project.

They also say the Army Corps of Engineers wasn't acting with due care when it botched operation and maintenance of Mr. GO, and it wasn't making a judgment call when it ignored a requirement to tell Congress about the channel's environmental problems.

The Corps "had the arrogance and power to ignore anybody they wanted to ignore," said professor Oliver Houck of Tulane University Law School in New Orleans. "They were the Corps. Until Katrina, they were king."

The victims' arguments have been persuasive enough to survive a government motion to dismiss the case on immunity grounds, a motion that has succeeded in virtually every other Katrina lawsuit.

Now they will have to back their arguments with hard evidence if the judge in this case -- Stanwood R. Duvall of the U.S. District Court in New Orleans -- is to find the government liable. Then, it would take another stage to determine how much the feds owe the victims, people like Kent Lattimore, one of the lawsuit's six plaintiffs.

Lattimore's home was destroyed by Katrina, and only a grass-covered slab remains.

"To this day, four years later, I think, how do you fix this, fix these neighborhoods?" he said, while gesturing toward an area that used to be his yard. "It's devastating."

But it is the small losses -- a ring he received from playing in a college football bowl game, for example -- that seem to bother Lattimore almost as much as the destruction of his home and the ruin of his business.

"I miss the small things: pictures, letters," he said. "Four years later, I've processed a lot of that, I'm dealing with that, and maybe it's what I'm supposed to have in my life."

He and his neighbors, though, are hoping for much more, a hope nurtured by the slow but remarkably steady progress of the lawsuit that is finally coming to trial.

The trial is expected to last four weeks, and if it ends in favor of Lattimore and the other plaintiffs, the U.S. government will either be forced to settle -- or face a crushing bill.

"If they win," Houck said, "Katie bar the door, because the number of claimants out there for similarly situated money are in the tens of thousands."