New Orleans Levees NR Nomination Appeal Keepers Response Letter June 14 - 2012 Inc Enclosures PP 1 To 34

United States Department of the Interior
NATIONAL PARK SERVICE

1849 C Street, N.W.
Washington, D.C. 20240
IN REPLYREFER TO:
H32(2280)
Ms. Sandy Rosenthal
Mr. H.J. Bosworth, Jr.
Levees Org.
JUN 14 201l
1421 Soniat Street
New Orleans, LA 70115
Dear Ms. Rosenthal and Mr. Bosworth:
Thank you for your letter of April 27,2012, appealing the United States Army Corps of
Engineers' (Corps) failure or refusal to nominate the New Orleans Levee Breach Sites - 1 i
h
Street and hmer Harbor Navigation Canal in Orleans Parish, Louisiana, to the National Register
of Historic Places (National Register). Your organization's nomination request is for two
properties, one under Federal ownership and one under nonfederal ownership, and is therefore
considered a concurrent nomination under 36 CFR 60.10.
The State of Louisiana (State) reviewed and processed the nomination as required in accordance
with 36 CFR 60.6 and 60.10. Although the State review board declined to recommend the
nomination, the Louisiana State Historic Preservation Officer (SHPO) signed the nomination,
certifying that the nomination was procedurally and professionally correct and that in the opinion
of the SHPO the two properties described in the nomination meet the National Register Criteria.
The SHPO then forwarded the nomination to the Federal Preservation Officer (FPO) for the
Corps, citing 36 CFR 60.11, "Requests for nominations." The Corps subsequently wrote the
SHPO, requesting additional time to respond to the nomination request. After 60 days had
elapsed, your organization then elected to appeal the Corps' failure or refusal to nominate to this
office pursuant to 36 CFR 60.12(a). The appeal arrived at the National Register on April 30,
2012. At our request, the Department of the Army sent the National Register a letter with its
opinion on the nomination on May 31, 2012, a copy of which is enclosed. By letter dated June 8,
2012, the Department of the Army sent us another letter on this topic, a copy of which is also
enclosed. In these letters, the Department of the Army states its opinion that the nomination is
deficient and that the properties are not eligible for listing in the National Register.
Although the flooding of New Orleans that occurred on August 29,2005, is of enormous
importance both for its impact on New Orleans and its people and for what it says about flood
control policies and practices, the nomination submitted as the basis of this appeal is being
returned. This is because, as explained in greater detail below, the nomination as presented is
technically and professionally inadequate under 36 C.F.R. Part 60. Because of these
inadequacies, I must deny your appeal. In reaching this decision, I have carefully reviewed the
nomination and the other documentation submitted on appeal, including your appeal letter, the
minutes of the State review board, and correspondence involving you, the State, the Corps, and
various interested parties.
Properties that have achieved significance within the last 50 years are not typically eligible for
listing in the National Register. An exception is made for those that demonstrate "exceptional
importance" in accord with 36 CFR 60.4, Criteria Consideration (g) and the National Register
Bulletin How to Apply the National Register Criteria/or Evaluation. The "50 year rule" is meant
to allow for a reasoned, balanced, and dispassionate appraisal of the historic importance of a
property. Nominations for properties claiming exceptional importance under Criteria
Consideration (g) must make a persuasive, thoroughly documented case that what is being
nominated is of exceptional significance and must be adequately documented and technically and
professionally adequate before the nominated properties may be listed in the National Register.
The nomination for the New Orleans Levee Breach Sites - 1 i
h
Street and Inner Harbor
Navigation Canal does not meet these requirements.
The nomination acknowledges that levees and floodwalls failed in more than 50 locations, but it
does not adequately explain why the two breach sites identified in the nomination merit listing
on their own in comparison to or in addition to others or to the system as a whole. For example,
the nomination notes that two of the breaches in the Inner Harbor Navigation Canal combined
were responsible for the flooding of the Lower Ninth Ward, yet only one of these two breach
sites is included in the nomination. The nomination also states that before Hurricane Katrina's
landfall, breaches developed in four I-walls, that of the 1 i
h
Street Canal and the east side north
breach of the Inner Harbor Navigation Canal (the subject of this nomination) and the two
breaches of the London Avenue Canal. The nomination does not, however, include the London
Avenue Canal breaches. In addition, the nomination does not adequately describe the effects of
the flood on New Orleans beyond a description of the flooding and resultant deaths. For
example, it does not adequately address the import of the events arising from the failure of the
levees with respect to other impacts on the people affected, the built environment, the economy
of the city, and the policies for planning and construction.
Some statements in the nomination make claims that are not supported by, or attributed to, any
source, and many of the passages that provide opinions are from the same source. This
nomination heavily relies on quoting reports and articles from a limited universe of studies, and
the language used in these direct quotations reflects the opinions of the study authors without
providing any of the opinions of those who contest their findings. Nearly every quotation used in
the nomination that cites design failure as the root reason for the breaches is taken from a single
author, Robert G. Bea, who appears alone or with co-authors in three reports. Each of these
quotes presents Mr. Bea's opinion; no differing opinions are offered, weighed, or evaluated. I
further note that the ongoing litigation in the United States Fifth Circuit Court of Appeals and the
Federal district court in New Orleans demonstrates that there are disputed and unresolved
matters of fact relating to the failure of the levees.
The nomination notes that "numerous studies" have been done and provides "descriptions of the
three major studies" but does not define what a major study is or what differentiates these studies
from others. It asserts that "at the time of the nomination, all studies agree ... ," whereas the Corps
has stated that there are other studies and expert opinions that provide differing opinions. In
addition, although the nomination claims to use summarized comments from the Corps' own
study, the Interagency Performance Evaluation Task Force report, it does not provide quotes
from the report, only interpretation.
There is no citation or quotation for the section on lawsuits, wherein the nomination claims that
the courts have "held the Corps responsible for design defects of the I -wall and for the flooding
resulting from the two east side IHNC breaches." Thus I have been unable to verify those claims
about the courts' holdings.
Finally, the nomination as submitted has numerous technical errors that are also substantive
because the sources of the information provided in the nomination are not clear, thereby leaving
the validity of the opinions and conclusions drawn in the nomination in question. Many of the
citations are missing from the nomination. The following footnotes are missing: 4, 5, 6, 8, part of
9,10,11,12,13, part of 14,15,18,19,20,22,23,28,29,30,31,33,34,35,38,39, 45, 46, 47,
48,50,51,55,56,60,61,64,65,66,73,74,75, part of 80, 81, 82, 87, and 88. The last line on
the third page of Section 8 is also missing. The pages are not numbered, which also is a technical
flaw. And although footnotes are not specifically required in National Register nominations,
when they are not included, the precise sources need to be provided in the text of the nomination.
This is of particular importance with respect to this nomination because certain facts and
opinions included in the nomination are being disputed in ongoing Federal litigation.
For the foregoing reasons, I am denying your appeal of the New Orleans Levee Breach Sites
1i
h
Street and Inner Harbor Navigation Canal nomination. The properties described in the
nomination will not be listed in the National Register on the basis of the nomination as
presented. If any revised nomination is prepared, it should be submitted to the appropriate
nominating authority for consideration.
Sincerely,
Carol D. Shull
Interim Keeper of the National Register
of Historic Places
Enclosures
cc: LA SHPO
lo-Ellen Darcy, Assistant Secretary
of the Army (Civil Works)
DEPARTMENT OF THE ARMY
OFFICE OF THE ASSISTANT SECRETARY
CIVIL WORKS
108 ARMY PENTAGON
WASHINGTON DC 20310-01 08
MAY 3 1 2012 ' I
J
L. , '. '-
Mr. J. Paul Loether
Chief, National Register of Historic Places
National Park Service
1849 C Street, N.W.
Washington, D.C. 20240
Dear Mr. Lother:
I am responding to your May 4, 2012 letter National Register of
Historic Places (NRHP) Nomination of the New Orleans Levee Breach Sites, 17'h Street
and Inner Harbor Navigation Canals (IHNC), Orleans Parish, Louisiana, which you
forwarded on December 27,2011 . After evaluation and consideration by my office and
the Corps Headquarters, I have determined that the nomination should not be
forwarded to your office under 36 CFR Part 60. The content of the nomination
document is deficient in numerous respects on matters which are currently the subject
of litigation and appeal before the United States Federal District Court for the Eastern
District of Louisiana and the United States Fifth Circuit Court of Appeals and it fails to
state a proper historical reason for finding the property is of exceptional importance
under Criteria Consideration G to 36 CFR Part 60.4.
This nomination concerns events that occurred less than seven years ago.
Pursuant to Historic Preservation regulations, a nomination must demonstrate that a
property is of exceptional importance to overcome the fifty-year period that has been
established under the regulations as a guide for evaluating and ensuring an informed,
dispassionate judgment as to the importance of a property and its historical importance.
This nomination fails in that regard by focusing on the causes of specific floodwall
failure rather than the effect of the flooding events on the community. The latter is the
proper context for evaluating the exceptional importance of a property under the
- -regu-Iations: ---Such -an-evaiuation needs1he peTspective of time to properly evaluate the
historic importance of the nominated sites.
Turning to the specifics of the nomination, the Louisiana National Register
Review Committee has declined to recommend this same nomination in substantially its
current form because of the length of the nomination and the lack of Committee
expertise in the subject matter. Also, the nomination document relies in substantial part
on the opinions of the plaintiffs' litigation experts in the In re Katrina Canal Breaches
Consolidated Litigation, No. 05-4182 (E.D.La.) to state in definitive terms the causes
and reasons for breaches occurring at two of the floodwalls contained in the Lake
Pontchartrain and Vicinity Hurricane Protection Project (LPV). However, no consensus
has been reached on these issues, and the United States' experts in the litigation have
provided opinions opposing those of the plaintiffs' experts. The opinions on causation
Pri nted on *Recycled Paper
and levee failure as set forth in the nomination document are being vigorously disputed
in the ongoing litigation, including a trial scheduled to commence on September 10,
2012 in New Orleans concerning the IHNC breach that is the subject of the nomination.
In addition, the document inaccurately states that the decision rendered by the federal
court in January of 2008 "held the US Army Corps of Engineers responsible." That
decision, however, dismissed all claims against the United States and was affirmed by
the appellate court on March 2, 2012. Also, not all studies agree on the failure
mechanisms of the levee and floodwall breaches, as stated by the nomination, which is
a contested issue in litigation and should not be used as a factor in evaluating whether
the property is of exceptional importance.
Finally, the nomination's selection of the two sites as representative of the
breaches along the entire LPV or as the impetus for the legislative efforts and reforms
set forth in the nomination misrepresents-the facts. The-overwhelming majority of
breaching along the LPV during Hurricane Katrina occurred on levees and not
floodwalls, particularly the levees bordering St. Bernard Parish. It was the performance
of the entire LPV system and the lessons learned on many fronts that resulted in
legislative efforts and reforms. The attribution of those efforts and reforms to just these
two breaches and their presentation as representative of the LPV system's performance
presents an incomplete and inaccurate picture.
For these reasons, I therefore decline to forward this nomination document to the
l\Jational Park Service.
Very truly yours,
J -Ellen Darcy
ecretary of the Ar
ivil Works)
R CElt 'ED 2280
DEPARTMENT OF THE ARMY
) .'
u.s. ARMY CORPS OF ENGINEERS
441 G STREET NW
WASHINGTON, D.C. 20314-1000
CECC-L
8 June 2012
Mr. J. Paul Loether
Chief, National Register of Historic Places and National Landmarks Programs
National Park Service
1849 C Street, N.W.
Washington, DC 20240
SUBJECT: Levees.org's Nomination of New Orleans Levee Breach Sites - 17th Street Canal
and East Side, North Breach of the Inner Harbor Navigation Canal (IHNC)
Dear Mr. Loether:
This letter responds to your request made in the May 25
th
meeting and teleconference for
specific comment as to why the Levees.org nomination is not adequately documented nor
teclmically and professionally correct and sufficient. Specifically, the nomination document
inaccurately states that the two nominated sites meet Criteria Consideration G for exceptional
significance because of engineering failures attributable to the U.S. Anny Corps of Engineers
(USACE) that resulted in catastrophe and changes in national flood control policies and
practices. Nomination at 9. The basis for this explanation, however, rests solely on the opinions
of Katrina plaintiffs' expert witnesses, and on facts which are vigorously disputed in ongoing
federal litigation involving the two nominated sites. The nomination fails to acknowledge the
lack of consensus in the engineering and scientific communities on the very issues upon which
the nomination relies. The nomination document also misrepresents the trial court decisions
involving the two sites in an attempt to demonstrate that there is a consensus on the
representations made in the nomination. There is, in fact, no such consensus. The exceptional
significance of these two sites cannot, therefore, be objectively established based on the
nomination document. Explanation of this fact is set forth below.
I. Lack of consensus in the engineering and scientific communities
The nomination relies on the existence of a unanimous consensus that USACE
engineering failures resulted in the floodwall breaches at the two nominated sites: "At the time of
this nomination, all studies agree on the failure mechanisms of the levee and floodwall breaches.
The unanimous consensus of these studies is that engineering errors created the catastrophe."
Nomination at 25. Nothing could be further from the truth as is evident by reference to the
voluminous expert opinion submitted by the parties to the Katrina litigation.
A. In re Katrina Canal Breaches Consolidated Litigation (Robinson), No. 05-4182 (E.D.La.)
The Robinson case in the consolidated Katrina litigation is the lead, test case for liability
from flooding related to the Mississippi River Gulf Outlet (MRGO), the Gulf Intracoastal
Waterway and the two east side IHNC breach sites, including the one that is the subject of this
CECC
nomination. All of the expert reports which have been submitted at the Robinson trial held in
April and May of2009 are hosted by plaintiffs' liaison counsel and can be reviewed at
vvww.katrinadocs.com/experts.cfil1 . These reports evidence the disagreement within the
engineering and scientific communities as to the cause of the levee and floodwall breaches and
damages resulting from Katrina. These reports are listed in the following chart by party, expert
and area of expertise with the reports in bold of the Plaintiffs' experts upon which the
assumptions in the nomination are based and the reports of the United States and WGI which
reach contrary conclusions:
UNITED STATES PLAINTIFFS
22 Dec 08 Johannes Westerink (surge 23 June 08 de Wit, Maaskant, Kok and Vrijling
modeling) (flow modeling)
21 Jan 09 Vrij ling, Kok, de Wit and Gautier
21 Dec 08 Donald Resio (wind and wave 9 July 08 Gautier, Kok and Vrijling (wave
interaction) modeling)
24 March 09 Donald Resio 13 Nov 08 Gautier, Kok and Vrijling
17 Dec 08 Bruce Ebersole (Surge 11 July 08 Paul Kemp (MRGO effect on surge,
modeling, hydrology and levee system waves and flooding)
performance) 14 Jan 09 Paul Kemp
18 Dec 08 Steven Fitzgerald (Interior 9 July 08 Kok, Aalberts, Kanning, Maaskant
drainage) and de Wit (polder flood simulations)
18 Dec 08 Thomas Wolff (geotechnical 14 July 08 Robert Bea (breach mechanism)
and engineering design) 29 Jan 09 Robert Bea, Ivor van Heerden,
18 Dec 08 Reed Mosher (geotechnical; Paul Kemp
project evaluation & performance) 3 April 09 Robert Bea
15 May 09 Robert Bea
22 Dec 08 John Barras (wetland habitat 11 July 08 Duncan Fitzgerald and Shea Penland
mapping) (geology and geomorphology; habitaUwetlands
loss)
1 March 08 Taylor Damage Reports
28 April 08 Crawford Damage Assessments
18 Dec 08 Stephen DeLoach (LIDAR & 13 July 08 Chad Morris (mapping, levee
structure elevations) heights)
22 Dec 08 Brian Jarvinen (meteorology &
surge research)
18 Dec 08 Louis Britsch III (geologic and 11 July 08 John Day and Gary Shaffer (MRGO
geomorphic development) effect on wetlands; land loss)
27 Jan 09 Day and Shaffer
B. In re Katrina Canal Breaches Consolidated Litigation (MRGO), No. 05-4182 (E.D.La.)
The MRGO category of the Katrina litigation is a consolidated class action dealing with
issues ofliability for damages from flooding related to the MRGO. Most of the liability issues
were tried in the lead, test case of Robinson. In September of this year, the final liability issue
concerning liability from flooding related to the two IHNC floodwall breaches, one of which is
the subject of this nomination, will be tried. The United States appears as a codefendant in this
2
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and East Side, North Breach of the Inner Harbor Navigation Canal (lHNC)
trial with the Government contractor, Washington Group International (WGI). The expert
reports submitted in the upcoming trial evidence the disagreement within the engineering and
scientific communities as to the cause of the flood wall breaches and damages resulting from
Katrina. These reports are listed in the following chart by party, expert and area of expertise
with the reports in bold of the Plaintiffs' experts upon which the assumptions in the nomination
are based and the reports of the United States and WGI which reach contrary conclusions:
UNITED STATES WGI (govt. contractor) PLAINTIFFS
8 March 12 Thomas Brandon 12 March 12 Francisco 1 Feb 12 Robert Bea, Diego
(assessment of failure) Silva-Tulia (assessment of Cobos-Roa, Rune Storesund
failure) and Xavier Vera
(assessment of failure)
11 April 12 Robert Bea,
Diego Cobos-Roa, Rune
Storesund and Xavier Vera
Rebuttal Report
8 March 12 Joseph B. 5 Jan 121. David Rogers
Dunbar (geological site
21 March 11 Robert A.
reports (site characterization)
characterization)
Dalrymple (hurricane
effects, storm surge and
flooding)
9 March 12 Patrick C. Lucia 25 July 11 Chad Morris
(compliance with standard of
9 March 12 David Sykora
(standard of care review) (survey and spatial data)
care)
12 March 12 W. Allen Marr 11 March 12 Brad James and
(evaluation of levee failure) Nicoli Ames IHNC North
Breach Piling Failure
Analysis
9 March 12 Timothy D. Stark Scott Taylor (loss report)
(effects of excavations on
31 Oct 11 James R. Danner,
J r (property damage
floodwall breaches) appraisals)
7 March 12 Thomas Naymik 26 July 11 John Crawford
(hydraulic conductivity of
7 Dec 11 Holly Sharp
(flood damage assessment)
subsurface deposits and
continuity)
18 March 12 Steven D.
(economic loss analyses)
7 Nov 11 Jean-Prieur Du
Fitzgerald (interior flooding Plessis (residence repair cost
analysis) estimate)
14 Nov 11 Karl G. Schneider
(residence contents report)
3 Nov 11 Michael W. Truax,
Sr. (market value appraisals)
C. In re Katrina Canal Breaches Consolidated Litigation (Levee), No. 05-4182 (E.D.La.)
The Levee category of the Katrina litigation is a consolidated class action dealing with
issues of liability for damages from flooding related to the New Orleans Outfall Canals,
3
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SUBJECT: Levees.org' s Nomination of New Orleans Levee Breach Sites - 17th Street Canal
including the 17th Street Canal, one of the sites that is the subject of the nomination. The expelt
repOlis generated in this case leading up to the dismissal of all allegations against the United
States are listed in the following chart by party, expert and area of expertise with the reports in
bold of the Plaintiffs' experts upon which the assumptions in the nomination are based and the
reports of the United States and WGI which reach contrary conclusions:
UNITED STATES PLAINTIFFS
10 September 07 Paul Kuhlmeier 22 July 07 Robert Bea Declaration
(hydrology)
(causation & hydrology)
29 August 07 Robert A. Dalrymple, 26 April 06 Hector Pazos Preliminary Report
Ph.D. (causation) (London Ave. Canal failure)
10 September 2007 Eric Nelson 27 July 07 Michael Sartisky, Ph.D. (damage to
(hurricane damage assessments culture)
23 August 07 James R. Danner (hurricane
damage repOlis)
29 August 07 Kenoy D. Yandell 30 July 07 John A. Kilpatrick, Ph.D.
(commonality of injury and damage) (commonality of injury and damage)
II. Misrepresentation of the trial court decisions
The nomination misrepresents the decisions of the trial court in the Katina litigation in
support of the contention that there is a unanimous consensus.
A. In re Katrina Canal Breaches Consolidated Litigation (Levee), 533 F.Supp.2d 615
(E.D.La. 2008)
The trial court dismissed all allegations against the United States regarding the 17th
Street Canal breach site on January 30, 2008, which decision was upheld by the United States
Fifth Circuit Cowi of Appeals on March 2, 2012. The nomination falsely represents that the trial
court "held the US Army Corps of Engineers responsible for defects in the design of the concrete
I-wall floodwall constructed in the earthen levees of the 1 i
h
Street Canal." Nomination at 24.
Instead, the trial court held that the suit was barred, and granted the United States Motion to
Dismiss. Any statements by the district court concerning liability were mere dicta and do not
reflect a formal finding by the district court.
B. In re Katrina Canal Breaches Consolidated Litigation (Robinson), 647 F.Supp.2d 644,
735 (E.D.La. 2009)
The nomination falsely represents that the trial court "held the US Army Corps of
Engineers responsible for the flooding from the two east IHNC levee breaches (and dozens of
others) because the federal agency failed to properly maintain the Mississippi River Gulf Outlet
(MRGO)." Nomination at 24. The trial court, in fact, held just the opposite. In fact the district
court specifically rejected this causal link to plaintiffs' damage: "Although plaintiffs argue in
their brief that the 10 feet of water that impacted the Franz' s house is all substantially attributable
to the MRGO, the Court finds to the contrary." Id. at 735. Further, this contention made in the
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nomination is contradicted by the testimony of the very plaintiffs' expert cited extensively
throughout the nomination in support of the exceptional significance of the sites: "Plaintiffs
contended that the MRGO was a substantial factor in the breaching of the IHNC floodwalls.
This contention is directly contradicted by the unequivocal testimony of plaintiffs' own expert,
Dr. Robert Bea." Id.
III. One-sided reliance on opinions of Katrina plaintiffs' expert witnesses
The nomination cites extensively to Katrina plaintiffs' expert witnesses - Bea, Cobos-Roa
and van Heerden - to support the assumptions made on the legal issues of causation and fault
relating to the engineering and the breaching of the levees and flood walls that occurred during
Hurricane Katrina in 2005:
a. Footnote number 1 to the nomination is a citation to a report co-authored by Dr. Robert
Bea and Diego Cobos-Roa, graduate student, regarding the IHNC breaches:
http://www.ejge. coml2008/Ppr0893/Ppr0893w.pdf . That same report is subsequently footnoted
5 times throughout the nomination document to establish the exceptional significance of the
breach sites. The first and third references contained in the cited and footnoted report are to Bea
and Cobos-Roa's expert reports in the Katrina litigation. The opinions in the cited and
footnoted report are based on and are the same as those for which Dr. Bea and Cobos-Roa have
been compensated in the litigation. All of Dr. Bea's Katrina Robinson expert reports can be
found at http: //W\\.W.katrinadocs.com/experl details.cfm?e= l .
b. Footnote number 12 to the nomination is a citation to the Independent Levee
Investigation Team Final Report, which report Dr. Robert Bea and Ray M. Seed co-authored and
of which team Dr. Bea is the chair: http://www.ce.berkeley.edulprojects/neworieans . That same
report is subsequently footnoted 2 times.
c. Footnote number 27 to the nomination is a citation to the book co-authored by Ivor
van Heerden. Van Heerden is another Katrina expert witness who co-authored one of many
expert reports that can be found at http://www.katrinadocs.com/report.cfm?r=16 and upon which
Dr. Bea relies.
Nowhere, however, is the possibility of bias and self-interest on the parts of these compensated
plaintiffs' witnesses acknowledged. The existence of opposing opinions and expert witnesses is
not even mentioned. None of the United States or WGI (government contractor) experts or their
reports or analyses are referred to or cited in the nomination. The existence of such reports,
which demonstrate the lack of consensus in the scientific and engineering communities, is not
acknowledged.
5
CECC
SUBJECT: Levees.org' s Nomination of New Orleans Levee Breach Sites - 17th Street Canal
IV. Challenged assumptions that underlie the nomination
The nomination represents as facts many issues which are in truth in dispute and does so
by relying on the opinions and reports authored by Katrina plaintiffs' experts Dr. Robert Bea,
Ivor van Heerden and Diego Cobos-Roa. For instance, the nomination represents that the work
performed by WGI, the government contractor, in the vicinity of the IHNC breaches
compromised the stability of the floodwalls . Nomination at 18. This is the disputed issue of
material fact which will be the subject of the upcoming In re Katrina Canal Breaches
Consolidated Litigation (MRGO), No. 05-4182 (E.D.La.) September 10,2012 trial. The
assumptions and expel1 opinion underlying the nomination's treatment of the IHNC breach site
are vigorously disputed and challenged as can be seen by reference to the United States defense
and expert opinion that follows:
A. Motions challenging Dr. Bea and Cobos-Roa's testimony and opinion
Dr. Bea and Cobos-Roa's opinions, as set forth in the reports referenced in the chart
contained in LB. above, are currently the subject of motions regarding their credibility and utility
before the federal district court. WGI's attorney, Bill Treeby, has submitted for the Keeper's
consideration the WGI Motion to Exclude Testimony and Opinions of Dr. Robert Glenn Bea
filed with the court on April 30, 2012. In the WGI Reply Memorandum filed in support of that
motion, WGI argues that "Dr. Robert Glenn Bea has ignored actual facts in favor of unsupported
hypotheses and has substituted junk science for recognized geotechnical engineering principles."
Reply Memorandum at 1, filed May 30, 2012 (Enclosure 1). Similar u.S. motions attacking the
credibility and utility of Dr. Bea' s reports and opinions have been filed and demonstrate that
there is no consensus in the scientific and engineering communities nor in the courts on the
opinions the nomination document presents as established fact.
B. W. Allen Marr, PhD, PE, NAE
This United States expert has reviewed Dr. Bea's IHNC breach site opinion in the
Independent Levee Investigation Team (IUT) Final Report and in Dr. Bea and Cobos-Roa' s
expert reports and finds the analyses to be "unreliable" and further that there is "no conceivable
way" that Dr. Bea and Cobos-Roa' s theory of fail ure could occur. March 12, 2012 Expert
Report at 60-68 (Enclosure 2).
C. Timothy D. Stark, PhD, PE, DGE
This United States expert has reviewed Dr. Bea' s IHNC breach site opinions contained in Dr.
Bea and Cobos-Roa' s reports and in Dr. Bea' s testimony and finds that some of the assumptions
6
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and East Side, North Breach ofthe Inner Harbor Navigation Canal (IHNC)
made are inconsistent with prior testimony and reports, certain contentions are dubious, and that
there is no potential for the contentions that Dr. Bea postulates led to the failure ofthe IHNC
floodwalls. This expert further concludes that WGI's work did not cause the failure of the IHNC
floodwalls. March 9, 2012 Expert Report at 220-235 and 254 (Enclosure 3).
D. Dr. Thomas L. Brandon, PE
This United States expert has reviewed Dr. Bea's IHNC breach site opinions in the IUT
Final Report and in Dr. Bea and Cobos-Roa's reports and concludes that "WGI's site-clearing
activities did not cause or contribute in any way to the breaches in the floodwall." March 8,
2012 Expert Report at 44 (Enclosure 4).
E. Joseph B. Dunbar, PhD, RPG
This United States expert has reviewed Dr. Bea's IHNC breach site opinions contained in
Dr. Bea and Cobos-Roa's reports and concludes that Dr. Bea's opinion regarding underseepage
as a mechanism of floodwall failure is unsupported by the physical and stratigraphic evidence.
March 8, 2012 Expert Report at 1-2 (Enclosure 5).
V. Conclusion
For the reasons set forth above, the U.S. Army Corps of Engineers believes that the
Levees.org nomination is not, objective, adequately documented, or technically and
professionally correct and sufficient. The nomination documents fails to establish that the two
nominated sites meet Criteria Consideration G for exceptional importance based on the opinions
upon which the document relies. The mechanism of the Katrina levee and flood wall breaches is
vigorously disputed before the various federal courts. There is no consensus in the engineering
and scientific communities, contrary to the representations in the nomination document. Because
the assumptions and representations underlying the nomination are incorrect and one-sided, this
nomination document is deficient and fails to establish the exceptional importance of the two
sites.
I appreciate this opportunity to respond to your request on this nomination. Should you
need to discuss this further, please do not hesitate to contact me at (202) 761-8545.
Enclosures MARTIN R. COHEN
Assistant Chief Counsel
for Litigation
7
ENCLOSURE 1
Case 205-cv-04182-SRD-JCW Document 20865-2 Filed 05/30/12 Page 1 of 38
UNITED STATES DISTRICT COURT
EASTERN DJSTRICT OF LOUISIANA
*
IN RE: KATRINA CANAL BREACHES * CIVIL ACTION
CONSOLIDATED LITIGATION
*
* NO. 05-4182
*
PERT A INS TO: MRGO * SECTION "K" (2)
Armstrong, No. 10-866
*
* JUDGE DUVAL
*
* MAGISTRATE WILKINSON
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
REPLY MEMORANDUM TO PLAINTIFFS' OPPOSITION TO MOTION TO
EXCLUDE TESTIMONY AND OPINIONS OF DR. ROBERT GLENN BEA
William D. Treeby, 12901
James C. Gulotta, Jr., 6590
Heather S. Lonian, 29956
STONE PIGMAN W ALTHER WITTMANN L.L.C.
546 Carondelet Street
New Orleans, Louisiana 70130
Telephone: (504) 581-3200
Facsimile: (504) 581-3361
Adrian Wager-Zito
Debra S. Clayman
JONES DAY
51 Louisiana Avenue, N.W .
. Washington, D.C. 20001-2113
Telephone: (202) 879-3891
Facsimile: (202) 626-1700 .
Attorneysfor Washington Group
International, Inc.
1095224v I
Case 2.05-cv-04182-SRO-JCW Document 20865-2 Filed 05/30112 Page 2 of 38
Table of Contents
Appendix of Exhibits ....... .............................................................................................................. . ii
I. THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE ................. 2
II. THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION PROGRAM;
DR. BEA'S "CRITICAL" BEST ESTTMATES OF PERMEABILITY ARE SHOWN TO
BE A SMOKE SCREEN .................................................................................................... .4
111. DR. BEA'S CROSS-SECTION "FACTS" ARE STILL NON-EXISTENT ....................... 7
A. North Breach Case I Cross-Sections .......................................................................7
B. North Breach Case 2 Cross-Sections ..................................................................... 10
I. Borehole 81 A is not representative of soi I conditions at the North
Breach ..................... .. ....................................................... .... ..................... . 10
2. Twenty-foot-deep "shell fill" feature shown in Dr. Bea's cross-
sections did not exist pre-Katrina . .... ........ .... .................................... .. ....... 11
C. South Breach Case I Cross-Sections ........................ .... ...... .... ........................ ...... . J3
I. Dr. Bea modeled a deep, backfilled excavation next to the South
Breach that did not exist prior to Katrina................................................... 13
2. The permeability value that Dr. Bea assigned to the backfill in his
South Breach Case 1 cross-sections is not consistent with the
backfill that WGI used in the EBIA ........................................................... lS
D. South Breach Case 2 Cross-Sections .................. .. ................................................. 16
I. Dr. Bea's assumption that WGI excavated a deep utility trench in
the vicinity of the South Breach is belied by the record evidence ............. 16
2. Dr. Bea's two-dimensional modeling of the South Breach Case 2
cross-sections render his analyses wholly unreliable .................... ...... ....... 17
E. So-Called Near Breach Case I Cross-Sections ...................................................... 18
TV. DR. BEA'S "REAL WORLD" WAS NOT IN THE LOWER NINTH WARD-HIS
"EXPLANATIONS" FOR COMPRESSIBILITY ARE MERE SMOKESCREENS TO
DIVERT ATTENTION FROM HIS FLA WED ANALYSES .......................................... 20
A. Dr. Bea's "Dilatational Wave Velocity Theory" Has No Bearing on this
Case and Should be Tgnored .................................................................................. 20
I. "Dilatational Wave Velocity" Was Contrived by Dr. Bea Only
Recently as a Last-Ditch Effort to Close Gaps in His Analyses and
Mislead Or Even Deceive the Court .......................................................... 21
2. Dr. Bea's Alleged Dilatational Wave Velocity Value Does Not
Apply To Events Like The Katrina Storm Surge But Rather To A
Dynamic Event Such As A Nuclear Explosion Or An Earthquake
And Has Nothing To Do With The Behavior Of The Organic Clay
Layer At The EBTA During Katrina ... .. .....................................................24
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Case 2:05-cv-04182-SRD-JCW Document 20865-2 Filed 05/ 30/12 Page 3 of 38
Table of Contents
( continued)
B. Dr. Bea's Alleged Transient + Steady Flow Analysis Is Not Supported by
the Facts and Is Contrary to Accepted Geotechnical Science .................... ... .. ....... 26
C. . Lambe and Whitman and SEEP/W in No Way Validate Dr. Bea's
"Analyses." .. .... .. ....... ................. ...... ........... ..... .... .... ... .................. ...... ................... . 28
V. CONCLUSION ...... ................ ... ................ .. .. ......... ...... ... .. ............. ....... ............... ........ ... .. .32
- ii
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Case 2:05- cv-04182-SRD-JCW Document 20865-2 Filed 05/30/12 Page 4 of 38
Appendix of Exhibits
Appendix No.
Exhibit 26 to Deposition of Dr. Robel1 Bea ................ ... ..... ................... ...... ... .... .................. .... .39
Agreement with Fugro Consultants, Inc., dated 6/20/20 I I ...... .... ..... ........................................ .40
Trial Transcript in BARGE, 7/8/20 10 (afternoon session), excerpts ......................................... .41
Dr. Robert Bea's Technical Report III in Robinson, excerpts .................................................... .42
Trial Transcript in BARGE, 7/8/2010 (morning session), excerpts .......................................... .43
IPET Repol1, Volume V, Appendix 17 (2009), excerpts .................. ......................................... .44
Deposition Transcript of Chad Morris, 3/9/2012, excerpts ..... .... ....................... ........ ............... .45
Deposition Transcript of Dr. 1. David Rogers, 3/16/2012 (Vol. I), excerpts .............................46
Expert Report of Dr. J. David Rogers, dated 115/2012, excerpts................................ .... ........... .47
Deposition Transcript of Dr. Thomas L. Brandon, 4/13/2012, excerpts ........ ........... ....... .. ....... .48
Design Mem. No.4, Florida Ave. Complex, June 1980...... ...... ..... ..................... ...................... .49
Deposition Transcript of Dr. 1. David Rogers, 3/17/2012 (Vol. 2), excerpts ............................ .50
Expert Report of Dr. Timothy Stark, dated 3/12/012, excerpts ...................................... .. .......... 51
WG l's Photographs of Gas Line Removal ................................................................................. . 52
MMG Boring Log (71 G) .... ..................... .. ................................................................................ .53
Borrow Pit Dri I ing Report, June 200 I, excerpt ..................................... .. ........................... ........ 54
May 2, 2002 Memo from Eng'g Division ................................................... .... ............................ 55
Expert Report of Dr. Francisco Silva-Tulla, 3/ 12/2012, excerpt.. .............................................. 56
Declaration of Dr. Francisco Silva-Tulia, dated 5/30/2012 .................. : .................................... .57
The Response ofSoils to Dynamic Loads, Whitman (1970), excerpt.. ...... ..................... ............ 58
Soil Mechanics, Lambe & Whitman (1969), excerpts ..... ................... ......................... .... ........... 59
Handbook of Physical Constants, Clark (1966), excerpt... ......................................................... 60
Soil Mechanics in Engineering Practice, Terzaghi & Peck (1996), excerpt ..............................61
SEEP/W Manual (2009), excerpt. ...... ............................ .. .......................... ... ..............................62
Declaration of Dr. T. William Lambe, dated 5/30/2012 ............ ......... ........................................ 63
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Case 2:05-cv-04182-SRD-,JCW Document 20865-2 Filecl 05/30/12 Page 5 of 38
' .
REPLY MEMORANDUM TO PLAINTIFFS' OPPOSITION TO MOTION TO
EXCLUDE TESTIMONY AND OPINIONS OF DR. ROBERT GLENN BEA
The Motion before the Court is /lot about "what caused the North and South
Breaches at the Lower Ninth Ward flood wall.'" The Motion instead asserts that Dr. Robert
Glenn Bea has ignored actual facts in favor of unsupported hypotheses and has substituted junk
science for recognized geotechnical engineering principles. The Opposition attempts to change
the subject "to deflect attention,,2 from these, shortcomings. The Opposition contains no
explanation for Dr. Bea's substitution of conceptual/hypothetical cross sections for carefully
documented pre-Katrina conditions at the East Bank Industrial Area ("EBIA"). Instead, the
Opposition attacks the well-founded opinions of true geotechnical engineering experts (whose
expertise is not before the Court on this Motion) rather than provide well-reasoned arguments to
explain the unheard-of pseudo-scientific jargon engaged in by Dr. Bea.
There is no doubt that Dr. Bea is a practiced forensic engineer. Dr. Bea has
extensive experience in the offshore oil and gas industry. But the statement that Dr. Bea had
"extensive 'boots on the ground' experience investigating levee failures," before becoming
involved with Plaintiffs as an advocate in this case, is simply untrue. Dr. Sea had no levee
failure investigation work prior to Katrina.
3
His many publications--of articles, papers, and
symposium presentations--have involved oil and gas pipelines and offshore platform safety, not
levee failures .
4
It is a misrepresentation to say that Dr. Bea had "extensive 'boots on the ground'
experience investigating levee failures."
Plaintiffs' Opposition To Defendants United States And Washington Group International, Inc.'s Motions to
Exclude Testimony And Opinions Of Dr. Robelt Bea (herein "Opposition"), at p, I.
Opposition, at p. I.
WGI Mem., Ex. 8, Bea Dep., Vol. I, p. 46: 15-24 and WGI Mem., Ex. 9, Bea. Dep. Vol. 2, p.175: 24-176: 23.
Bea's only other levee, floodwall , or flood control structure investigations ,\'ere on the Upper
Mississippi River in 2008 and on the Sacramento River within the four years prior to March, 2012.
Bea Deposition, Vol. I, p. 50:3-15. Out of 644 publications listed in Appendix A to his Expel1 RepOlt (pp. 4
40), Dr. Bea onlyc/aimed that a total of 10 related to "tloodwall, levee or flood control failures that were
published prior to Hurricane Katrina" .. " Sea Deposition, Vol. 1, p. 50:16-21; p. 51:I-p, 54:16; Vol. 2, p. 7:8
p_ 8: 15; Ex. 39, Exhibit 26 to Dr. Bea's deposition, Vol. 2. Dr. Bea identitied items 39, 76 ti-om pp, 4-8 of
- I
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Case 2:05-cv-04182-SRD-JCW Docurnent 20865-2 Filed 05/30/12 Page 6 of 38
The Opposition's .inapposite citation to this COUlt's prior opinions in BARGE and
Robinson is similarly inappropriate and unavailing.
5
In Robinson, without WGI present, the
Court was not attempting to determine the cause of failure of the IHNC/EBIA levees and
floodwalls. In BARGE, again without WGJ present, the COlllt simply determined that the barge
did not contribute to the leveelfloodwall failure.
6
Once again, WGl's motion to exclude the testimony and opinions of Dr. Robel1
Glenn Sea is not undertaken lightly--the remedy sought is rarely granted. However rare, this is
such a case. Dr. Bea's opinions in this case are not supported by facts or by science and should
be excluded.
I. THE LEGAL STANDARD TO EXCLUDE JUNK SCIENCE IS MET HERE
Tn a bench trial, where the judge acts as both the gatekeeper and finder of fact,
"the Daubert standards of admissibility of expert testimony must still be met . ... ,,7 The ultimate
question still is "[w]hether an expert will assist the factfinder" under Rule 702.8 '''[W]hen the
court sits as trier of fact, ... [it] is then in the best position to know whether expert testimony
would help [it] understand the case.",9 Only in the latter sense, in which the trial judge's own
confidence in hearing scientific evidence at trial exceeds the confidence that he may have in a
(continued ... )
Appendix A to his repOlt, under" Archival Journals"; items 13, 19, 23, 36 and 77 li'om pp. 13-39 of Appendix
to his report, under Refereed and Non-Refereed Conference Proceedings and Symposium Proceedings,
Technical RepOlts, and Alticles in Non-Archival Magazines or Journals. Dr. Bea also identitied items II, 12
and 13 trom Books or Chapters in Books. However, a review of those materials in fact shows that none of
these publications involved failures of levees, flood walls or flood control structures.
Opposition, at pp. 1-2, fn. 2; Id. at pp. 4-5.
"[TJhe Court makes no finding as to the ultimate cause(s) of that failure [North Breach]", and "[t]he Court will
not make findings as to the specific cause(s) for the South Breach .... " 20 I J WL 1792542 at *13, 14.
Schilder Daily. LLC v. DeLaval, Inc., 20 II WL 2634251 at 2 (D .ldaho 7/5/ II); see a/so, Seaboard Lumber
Co. v. Us., 308 F.3d 1283, 1302 (Fed. Cir. 2002).
French 1'. Allslale fndem. Co., 637 F Jd 571, 578 (5th Cir. 20 II) (quoting Mercado v. Auslin Police Dep'I, 754
F.2d 1266,1269 (5th Cir. 1985)).
fd.
- 2
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6
Case 205-cv-04182-SRO-JCW Document 20865-2 Filed 05/30/12 Page 7 of 38
jury's ability to understand scientitic evidence, are Daubert standards considered relaxed.
lo
The
judge is under no duty, even in a bench trial, to hear scientific evidence at trial that will not assist
him in finding the relevant facts.
As a result, judges have, in fact, excluded expert testimony prior to a bench trial
because of the flaws found in a proffered expert's methodology. I I Should the Coul1 find that Dr.
Bea's methods are scientifically unreliable, the Coul1 has a duty to exclude his opinions and
testimony under Rule 702.
Plaintiffs accuse WGI of twisting the Daubert inquiry into a "de facto summary
judgment that would dispose of the entire action.,,12 The Court should not avoid a thorough
Daubert inquiry merely because Plaintiffs' theory of causation is based on one expert's flawed
and inadmissible analysis. In Rink v. Cheminova, Inc., the district court was faced with a similar
situation.
13
The district coul1 found (and the appellate court affirmed) that the plaintiffs'
causation expert's methods were unrel iable, and his testimony was therefore inadmissible.
14
The
court also found that because the plaintiffs' other experts relied on the inadmissible repoli, their
15
own reports were also unreliable and inadmissible. As a result, the district court found "that
there was no reliable expert evidence" of causation.
16
Without the expert testimony, "the
putative class representatives failed to make a sufficient showing for an element on which they
10
See David E. lVatson, P.e. 1'. U. S., 668 F.3d 1008, 1015 (8th CiT. 2011) ("When the district court sits as the
finder of fact, '''[t]here is less need fur the gatekeeper to keep the gate when the gatekeeper is keeping the gate
only for himself.'" (quoting In re 211m Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613 (8lh Cir. 20(1 .
Thus, Courts may relax Daubert's application fo r bench trials . Id.
II
See Johnson v. Big Lot St ores, Inc ., 2008 WL 1930681, at *20 (E.D.La. 4/29/08).
12
Opposition at p. I I .
J3
400 F.3d 1286 (II th Cir. 2005).
14
Id. at pp. 1292-94.
15
Id at pp. 1294-95.
16
Id. at p. 1295.
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Case 2:05-cv-04182-SRD-JCW Document 20865-2 Filed 05/30/12 Page 8 of 38
had the burden of proof. ,,I 7 On appeal , the appellate court held that "the district court properly
granted summary judgment" in favor of the defendant. I
8
Plaintiffs cannot bear their burden of demonstrating that Dr. Bea's opinions are
scientifically reliable. There is no reason to delay until trial a decision excluding Dr. Bea's
unfounded opinions.
II. THE OPPOSITION DISTORTS THE JOINT SOILS INVESTIGATION
PROGRAM-----DR. BEA'S "CRITICAL" BEST ESTIMATES OF
PERMEABILITY ARE SHOWN TO BE A SMOKE SCREEN
The history of Dr. Bea's changing opinions and the rationale for the joint soils
investigation are relevant to understanding Dr. Bea's current opinions. Plaintiffs, in their
Opposition, try to rewrite the relevant history. For example the Opposition states: "Dr. Rogers
concluded that Fugro and the Defendants elected to ignore the minority of materials within the
boring's varied soil and assign an identitication based upon the majority of the material found in
the boring. This identification was based upon a standard (ASTM 2487) not included within the
SOp.,,19 That statement is misleading. The soils classification standard, ASTM 0 2487 was
required by the joint soils investigation program, and was explicitly agreed to by Plaintiffs?O
Plaintiffs and Dr. Rogers have no legitimate cause to complain. Further, the classifications
applied to the soils in Fugro's logs do not affect the analyses of the critical soil properties at issue
in this case. Plaintiffs' and Defendants' experts agree as to the permeability determined by
Fugro's testing. As Plaintiffs admit, determination ofthe soil permeability was the main purpose
of engaging Fugro?1
17
!d. at pp. 1295-96.
18
{d. at p. 1296.
]9
Opposition at p. 7.
~ o
Ex. 40. Agreement with Fugro Consultants. Inc. by the parties, dated June 20, 2011, on page 4 of II, states:
"'Full Soil Classitication Tests', where assigned by the Experts .. . will be performed utilizing the appropriate
test procedures, including ASTM 02487.... "
21
Opposition at p. 7.
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Case 2:05-cv-04182-SRD-JCW Document 20865-2 Filed 05/30112 Page 9 of 38
Similarly, Plaintiffs attempt to distance Dr. Bea from the opinions expressed in
the JUT repoI1.
22
This is contrary to Dr. Bea's prior testimony in the BARGE litigation
2J
and to
claims of his co-leadership of the JUT team and co-authorship of the JLIT report as bases for his
24
qualifications to offer an expert opinion in tlris case. Dr. Bea still cites, in his repol1 in tlris
case, to the lUT repol1 as a basis for determining his "best estimate'! of the horizontal
conductivity for the "marsh layer.,,25
[n their Opposition, Plaintiffs refer to a range of permeability values mentioned
by Dr. Bea in his prior reports for which he claimed to have considered underseepage effects.
26
Regardless, in vil1ually every repol1 and opinion authored or offered by Dr. Bea since 2006, he
has referred to a "best estimate" for permeability on which he based his reported seepage analysis
results. Dr. Bea's "best estimate" of the permeability has changed multiple times since 2006.
In the very last declaration that he submitted in Robinson (dated January 29,
2009), Dr. Bea confirmed that he relied on a "best estimate" of lxl0-
J
cm/sec for the
permeability of the "marsh layer.,,27 Further, a review of his reports issued in Robinson reveals
that he relied on a permeability of lxlO-
J
cm/sec to model his failure scenario.
28
It was
supposedly because of the uncertainty of the characteristics of this "critical" layer, that Dr. Bea
22
Opposition at p. 8.
23
A: I don't think I've been criticized. J think the independent levee team was correctly appropriately criticized
lor the use of their vel)' high water conductivity that we used in stages I and 2 of the IPET -- JUT work.
Q: And you were co-leader of that team; is that fair?
A: That's correct.
Q. At the time that the (LIT team, which you were a co-leader of, came up with its conclusions regarding
seepage and underseepage, you were in agreement with those conclusions, correct?
A: That's correct.
Q: And at all times when the fLIT team put out a report, any portion of its report, at the time it was put out, you
were in agreement with those conclusions; fair?
A: That's correct.
Ex. 41, BARGE Transcript. 7/8/20 I 0 (atlernoon). at pp. 2753: 19-2754: 14.
24 Bea Report at p. 5, '1'1 7-8.
Bea Repoli at p. 72. ~ 7 7 .
26
Opposition at p. 10.
27
WGI Mem., Ex. 4, Bea Decl;]ration in Robinson, January 29, 2009, at p. 132, '1182.
28
See Ex. 42, Technical Report 1II in Robinson, at pp. 95-99.
- 5
1095224v 1
t
suggested in a repoJ1 in Robinson that "[f]uture work on the breach site (and non-failure sites)
should be carried out to assess the permeability of this complex deposit. ,,29
Later Dr. Bea testified before this Court in BARGE on July 8, 20 I 0, that the
borings done at the EBIA prior to that date were sufficient to allow him to characterize the soils
in the vicinity of both the North and South Breaches.
30
Based on his understanding of the soil
propeJ1ies Dr. Bea testified that his "best estimate" for the "marsh layer's" permeability was
31
lxtO-
4
em/see.
However, after the studies conducted by Fugro and analyses performed by Dr.
David Rogers, Dr. Bea now concedes that the best estimate of the permeability of the "marsh
layer" is lxlO-
5
em/sec. This estimate is the same as the upper bound value for permeability first
estimated by {PET in 2 0 0 6 3 ~ and now by WGI's expeJ1s. At lxlO-
s
em/sec, fPET, WGJ's and the
Government's current experts all agree that failure could not have occurred as a result of
underseepage.
33
Dr. Bea's opinion, of course, is to the contrary. He now is anxious to tell the
Court that he long ago believed that failure caused by underseepage occurred across a range of .
permeabilities as low as lxlO-
5
em/sec. His shifting opinions disrespect both the scientitic and
the judicial process in which he has been a prominent participant for over six years.
WGI's and the Government's experts have now thoroughly analyzed Dr. Bea's
work and have determined exactly why permeability, that he continues to call a "critical"
material property, does not appear to be critical to Dr. Bea's analyses after all. Defendants'
experts discovered the answer to that "why". It was because Dr. Bea consistently, and until now
secretly, manipulated another essential hydrogeologic property, compressibility. Dr. Bea's
29
!d. at p. 67.
30
Ex. 43, BARGE Transcript, 7/8/20 10 (morning). at pp. 2626: 23-2627:2; 2628: 10-14.
31
Ex. 41 , BARGE Transcript , 7/8/2010 (afternoon), at p. 2737:9-11.
32
Ex. 44, !PET Report, Vol. V, Appendix 17 at p. 17-17.
33
See id at pp. 17-29 to 17-39.
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Crtse 2:05-cv-04182-SRO-JCW Document 20865-2 Filed 05/30/12 Page 11 of 38
manipulation of compressibility had long ago rendered permeability virtually meaningless to his
incorrect and deceptive analyses.
III. DR. BEA'S CROSS-SECTION "FACTS" ARE STILL NON-EXISTENT
Plaintiffs concede that Dr. Bea's cross-sections are necessary to "demonstrate how
and why the North and South Breaches occurred, as well as how and why the floodwall did not
fail at McDonough Marine.,,34 In fact, these cross-sections were entered into computer models
by Dr. Bea's graduate student, Mr. Cobos-Roa, to support Dr. Bea's hypotheses that the
floodwalls failed due to underseepage. Accordingly, as Plaintiffs admit, the cross-sections
should be "reasonable representations of the geotechnical and flood wall conditions that existed
... when Hurricane Katrina arrived. ,,35 Nevertheless, they suggest, despite the lack of any
evidence, that they are still looking for and may eventually find something to support Dr. Bea's
conceptual, hypothetical cross-sections and the excavations depicted on the cartoons pictured in
his Expert Report.
36
If real evidence existed for these made-up features, Plaintiffs' expert team
would have found them by now. Because no actual facts support these hypothetical cross-
sections, Dr. Bea's opinions are unreliable and should be excluded.
A. North Breach Case 1 Cross-Sections
In its Memorandum, WGI argues that Dr. Bea's North Breach Case I cross-
sections are unreliable and irrelevant because they model a 25-foot wide x 100-foot long x 15
foot deep excavation within sixty feet of the North Breach that undisputedly did not exist before
Katrina?7 [n their Opposition, Plaintiffs concede that in fact Dr. Bea has found no pre-Katrina
evidence-despite having access to thousands of photographs, daily reports and work plans
detailing WGI's work in the EB[A-that this fictional excavation actually existed pre-Katrina, or
34
Opposition, at p. 10.
35
Id.
36
See. e.g.. Opposition, atpp.13, 19.
37
WOI Mem., atpp. 16-17 & Revised Ex. 14.
- 7
1095224v J
I .
that such an excavation was part of WGI's site clearing operations in the EBIA.
38
That lack
should be the end of the COllI1'S inquiry.39
Instead, Plaintiffs attempt to deflect attention away from the fact that Dr. Bea
modeled a fabricated excavation at the North Breach by insisting that Dr. Bea has pre-Katrina
evidence of other excavations and backfilling activity near the North Breach that WGI
performed.
4o
Yet, as WGI painstakingly detailed in its opening brief (and Plaintiffs do not
dispute), none of these "other" pre-Katrina excavations on Boland Marine come close to
matching the location and dimensions of the fictitious excavation shown in Dr. Bea's North
Breach Case I cross-sections.
41
Thus, these "other" excavations, which Dr. Bea chose not to
model, are wholly irrelevant to determining the reliability of his North Breach Case I cross-
sections and the flow and stability analyses that he ran based on these cross-sections.
Plaintiffs next cite to post-Katrina aerial and ground photographs in Dr. Bea's
Expert Report showing what they describe as "unusual holes" or "significant soil disturbance" at
the North Breach.42 They claim that Dr. Bea used "inductive" reasoning to conclude that these
"unusual holes" must be "artifacts" of WGI's "poorly backfilled excavations.,,43 But these post-
Katrina photographs are not evidence that WGI did anything pre-Katrina, let alone excavate and
backfill a 100-foot long, 15-foot deep hole within sixty teet of the North Breach as Dr. Bea
represents in his North Breach cross-sections. Dr. Bea admitted as much in his deposition.
44
Without a shred of evidence to connect photographs of an unusual post-Katrina disturbance near
the North Breach to WGI's undeniably well-documented pre-Katrina excavations on Boland
38
3q
See, e.g., Coffey v. Dowley Mfg Inc ., 187 F. Supp. 2d 958, 974-79 (M.D. Tenn. 2002) (where expert' s analysis
is "based on hypotheses and 'guesstimations' that have little grounding in actual physical realities," exclusion
is warranted under Daubert) .
40
Opposition at pp. II. 13 .
41
WGI Mem., Revised Ex. 14 ("Evidence Dr. Bea Cites In SupPOl1 of North Breach Case I Cross Sections").
4Z
Opposition at pp. 11 , 13 (citing Bea Report at pp. 20, 24-29 & App. B, Fig. 3).
43
WGr Mem., at p. 16 (citing Bea Dep Vol. 2 at 113 :5-21 ).
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Case 2:05cv-04182-SRD-JCW Document 20865-2 Filed 05/30/12 Page 13 of 38
, , ~ .
Marine, Dr. Bea's "induction" is nothing more than an unsupportable hypothesis. It certainly is
not evidentiary SUpp011 for cross-sections that purport to be "reasonable representations" of pre-
Katrina conditions in the EBIA.45
To be sure, Plaintiffs' expert, Chad Morris, P.L.S., who helped Dr. Bea "develop"
the North Breach Case I cross-sections,46 testified that he could not tell if there were any pre-
Katrina excavations within fifty feet of the North Breach from looking at post-Katrina aerial
photographs: "I don't think [aerial photographs] are the proper tool for that.,,47 And, Plaintiffs'
expert on pre-Katrina "site characterization" in the EBIA (who opines at length about WGI's
excavations in the EBIA) testified that he does not "know what that particular [excavation] is" in
Dr. Bea's Case I cross-sections.
48
Finally, Plaintiffs rely on the deposition testimony of the government's expert, Dr.
Thomas Brandon, for the proposition that that Court should give Dr. Bea a certain amount of
"latitude" in developing his cross-sections because drawing cross-sections involves engineering
''judgment. ,,49 The rest of Dr. Brandon's testimony on this issue was that although "you're
allowed a certain amount of latitude in drawing" cross-sections, it still is "imp0l1ant to look at all
the information you're given. ,,50 For example, showing "a large backfill [ed] excavation" in the
North Breach Case 1-2 cross-section (as Dr. Bea did) is "a problem" when "I've got no evidence"
that such an excavation ever existed.
51
45
See Opposition at p. 10.
46
47
Ex. 45. Morris Dep. at pp. 193 : 11-194: 15.
48
WGI Mem. Ex. 13, Rogers Dep. Vol. 2 at pp. 248: 13-250:6. According to Dr. Rogers, site characterization
involves: "Developing a model for what the underground looks like, what the stratigraphy and the layers of
soil, the geology, the hydrology, the anthropogenic changes that have occurred liom mankind working in an
area, altering things. excavating. filling. changing things." Ex. 46. Rogers Dep. Vol. I at p. 13:3-11. Plaintiffs
assertion that because Dr. Rogers did not create the Case I cross-sections, it is "not surprising" that he was
unfamiliar with the excavation in Dr. Bea's Case 1-2 cross-section, is wholly unavailing . Opposition at p. 13.
Dr. Rogers was retained to know about all the excavations in the EBIA. See Ex. 47, Rogers Rep. at 106- 13 &
228-37.
4Q
Opposition at pp. 11-12 (citing Brandon Dep. at pp. 49, 55 , 120).
50
Ex. 48, Brandon Dep. at pp. 124:17-125:2.
51
fd. at p. 121 :4-13.
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I Case 2:05-cv-04182-SRD-JCW Document 20865-2 Fil ed 05/30/ 12 Page 14 of 38
B. North Breach Case 2 Cross-Sections
Dr. Bea's North Breach Case 2 cross-sections also are unreliable because they
show a 20-foot-deep, highly-permeable, "shell fill" polygon at the North Breach, which did not
exist pre-Katrina.
52
Dr. Bea's only so-called evidence of this deep, pervious "shell fill" feature
comes from the 2001 MMG Boring 81A.
53
But as described below, Boring 81A is not
representative of the pre-Katrina geotechnical conditions at the North Breach. And, even if it
was representative, Boring 81 A does not support either the depth of this "shell fill" or Dr. Bea's
made-up permeability value for this "fill", which was really a mixture of shell, silt and sand.
1. Borehole 81A is not representative of soil conditions at the North
Breach.
MMG Borehole 81 A was located (pre-Katrina) at the northeast corner of Boland
Marine between Surekote Road and the flood wall, about 24 feet north of the northern edge of the
north breach. 54 The borehole was uniquely situated relative to the other MMG boreholes along
the floodwall because it was drilled into the eastern slope or shoulder of Surekote Road at the
same place where the Road "traversed up and over" the deeper 1980s floodwal1.
55
For this
reason, the ground surface elevation at borehole 81 A was higher than any other location along
the floodwall, at about +7.85 feet NAVD88(2004.65).56 And, there is more shell mixed with silt
and sand in boring 81 A than in any other MMG boring along the floodwal1.
57
Nevertheless, Plaintiffs argue that because boring 81 A was the closest soil boring
to the "breach initiation point" (i.e., the location where the sheet pile initially tore), it is
52
See WGI Mem ., at p. 17-19.
53 . See Opposition at pp.15-18.
;4
WGI Mem., Exs. 17 & 27; Ex. 48, Brandon Dep., at pp. 105:3-106:J.
55
See Ex. 47, Rogers Rep. at pp. 80-82 & Fig. 84; id., at p.80 & Fig 86 Undicating "shell fill" used to build up
the "side s lopes" of Surekote Road in this area) .
;6
See IPET Pre-Katrina 3Fllnterior (Adjusted) Resolution LiDAR Coverage; e03 _29090h Icl.img and
e03_29090h I c ,_hillshaded.img. from https:llipet.wes.army .mil.
;7
See, e.g., WGI Mem. , Ex. 16 (MMG Boring Logs).
- 10
1095224v 1
Case 2: 05-cv-04182-SRD-JCW Document 20865-2 Filed 05/3 0/12 Page 15 of 38
representative of pre-Katrina soil conditions along the entire breach site.
58
That argument is
flawed. First, Dr. Bea has no evidence that the anomalous deep shell/silt/sand fill in borehole
8 I A-located about twenty-four feet north of the leading edge of the NOl1h Breach-reflects the
soi I conditions at the so-called "breach initiation point."
Second, Dr. Bea's two-dimensional cross-sections are not being used to model the
"breach initiation point." As evidenced in the North Breach Case 2 SEEP/ W output files, Dr.
Bea's two-dimensional flow and stability models assume that this Bea-fabricated 20-foot-deep
"shell fill" extended infinitely in the north-south direction across the entire length of the NOith
Breach.
59
Such a feature never existed. Boring 79A, near the center of the North Breach shows
shell/silt/sand fill extending down only six feet.
60
And, boring 77A, at the south end of the North
Breach, shows shell/silt/sand till extending down only five feet.
61
Thus, boring 81 A cannot and
does not represent the pre-Katrina soi I conditions across the length of the entire NOlth Breach
site as Dr. Bea's conceptual cross-sections and seepage models portray.
2. Twenty-foot-deep "shell fill" feature shown in Dr. Bea's cross-sections
did not exist pre-Katrina.
But even if boring 81 A was representative of the pre-Katrina soil conditions at the
NOl1h Breach, Dr. Bea's Case 2 cross-sections still must be excluded because boring 81 A does
not show any so-called "shell fill" that extends as deep as the sheet pile tip.62 As WGI pointed
out in its opening brief (and Plaintiffs do not dispute), Boring Log 81 A shows "FILL, SHELL
with SILTY SAND" and "FILL, SILTY SAND and SHELL" down to a depth of onl y about 16
feet.
63
The pre-Katrina elevation at the top of borehole 81 A (along Surekote Road) was
58
Oppo siti on at p. 15 .
59
WGI Mem ., Ex. 15 (Sil va-Tulia Decl., Ex. A at p. 1).
60
WGI Mem. , al p. 19, & Ex. 17 (Bol and Marine Borehol e Map).
61
Id.
62
See WGI Mem ., at p. 19.
63
WGI Mem ., at pp. 18-19 (citing Ex. 16, Boring Log for 81 A).
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\ Case 2:05-cv-04182- SRD-JCW Docurnent 20865-2 Filed 05/30/12 Page 16 of 38
approximately +7.85 feet NAVD88(2004.65).64 Therefore, the shell/silt/sand fill in 81A
extended down to a pre-Katrina elevation of only -8.15 feet NA VD88(2004.65). In other words,
the actual shell/silt/sand fill ended about 2.4 feet above the sheet pile tip of the original 1960s
wall, and about 19.85 feet above the sheet pile tip of the deeper 1980s wal1.
65
Yet, in the fictional North Breach Case 2 cross-sections contained in his expert
report and entered into his SEEP/W computer model, Dr. Bea conveniently ignores the actual
facts and instead assumes that "shell fill" extends from the top of Surekote road all the way down
to the tip of the sheet pile wal1.
66
This false assumption assists Dr. Bea's underseepage-failure-
theory, but it has absolutely no factual support.

Additionally, Dr. Bea models the permeability of the "shell fill" in his Case 2
cross-sections as having a value of either 0.01 em/sec or 1xlO-
2
em/sec (North Breach Case 2-1)
or 0.1 em/sec or lxl0-
1
em/sec (North Breach Case 2_2).7 Such high permeability values are
consistent with "clean" shell fill, or shell that is not mixed with any silt or sand.
68
But as borings
81 A and 79A indicate. the fill that Dr. Bea modeled in his North Breach Case 2 cross-sections
was not clean or pure shel1.
69
There were si Its and sands mixed in with the shells. The mixture
with silt and sand significantly reduces the hydraulic conductivity of the so-called "shell fill" .7o
Indeed, as the Government's experts agree "if you have [shells] with silt and silty sand in it,
See supra, p. 10, tn. 56.
This assumes that the sheet pile of the original 1960s tloodwall extended, as Dr. Bea contends, to -10.5 feet
elevation NA VD88(2004.65). Bea Repol1. at p. 36, ~ 39. It also assumes that the sheet pile tip of the 1980s
floodwall was at elevation -28 feet NAVD88(2004.65). See Bea Rebuttal RepOli, at p.5, '1 9 (top of wall
elevation for the entire site was set by Dr. Bea at +13 feet); Ex. 49, Design Mem. No.4, Florida A ,e. Complex,
June 1980 (as-built design for 1980s tloodwall showing length of 41 feet from top of the tloodwall to the
sheetpile tip). While WGI has clear evidence that the top of tloodwa ll (and therefore sheet pile tips) was much
lower than Dr. Bea states, even with his higher elevations, the lowest shell /sand/silt fill was about 2.4 feet
above the sheet pile tips.
66
Bea Report, App. B, Figures 12 & 13; WGI Mem., at pp. 17-18.
67
See WGI Mem., Ex. 15 (Sil va-Tu.ila Decl. , Ex. Bat p. I).
68
See, e.g., Ex. 50, Rogers Dep., Vol. 2, at p. 245: 10- 16; Ex. 51 , Expert Report of T. Stark, Mar. 12, 20 I 2, at p.
140.
69
WGI Mem., Ex. 16 (Boring Logs 81A, 79A).
70
WGI Mem, Ex. 9, Bea Dep. Vol. 2, pp. 264 : 14-265:7.
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1095224, 1
Case 2:05 cv-04182-SRO-JCW Docurnent 20865-2 Filed 05/30/12 Page 17 of 38
you're almost starting at a permeability of ten to the minus three and below.,,71 Thus, Dr. Bea's
unjustifiable lise of permeability values of 1xl02 em/sec and lx10-
1
em/sec for the shell fill,
which is at least one or two factors of ten more permeable than existed even at the location of
borehole 81 A, makes his cross-sections (and the results of his seepage and stability models based
on those cross-sections) entirely lInreliable.
72
C. South Breach Case 1 Cross-Sections
WGI contended in its Memorandum that Dr. Bea's South Breach Case 1 cross-
sections are completely unreliable for two reasons. First, the cross-sections include a 25-foot
wide x SO-foot long x 18-foot deep backfilled excavation at the waterside toe of the levee that
did not exist before Katrina.
73
Second, Dr. Bea modeled the backfill material of this non
existent, pre-Katrina excavation with highly permeable till (1.0 em/sec), which WGr did not use
to backtill excavations an)"Nhere in the entire EBIA.74 Plaintiffs do not deny either of these
assertions in their Opposition brief.75 As a result, Dr. Bea's South Breach cross-sections (and the
results of any computer analyses based on those cross-sections) should be excluded.
1. Dr. Bea modeled a deep, backfilled excavation next to the South
Breach that did not exist prior to Katrina.
Plaintiffs admit that Dr. Bea has not found any evidence in all of the extensive,
detailed documentation of WGJ's work in the EBIA, that WGI performed an excavation along
the South Breach with dimensions I ike the one that he modeled in his Case I cross-sections.
76
71
Ex. 48, Brandon Oep. at pp. 106: 2-l07:18; Ex. 51, Stark Report at p. 140 ("the longest [si c. should be
"lowest"] expected value of hydraulic conductivity for a poorly graded sand to a silty sand" like that found in
boring 81A is lxlO
J
) (citing Terzaghi et aI. , (1996)).
72
In any event. Dr. Bea' s Case 2 cross-sections are not relevant. As WGI previously pointed out (and the
Plaintitfs do not dispute) the so-called "shell till " in boring 81A pre-existed WGl's work in the EB1A. WGI
Mem., at p. 17, til . 48. Thus, to the extent the existence of shell till somehow contributed to the levee failures,
it has no bearing on the case against WG I. This is particularly true where, as PlaintitTs' own site
characterization expert concedes, WGI did not perform any excavations anywhere near borehole 81 A. Ex. 50,
Rogers Oep. Vol. 2 at pp. 221 : 16-224:5.
7)
WG! Mem. , at pp. 19-24.
74
WG( Mem ., at p. 32 .
75
See Opposition at pp. 19-21.
76
- 13
1095224, 1
Case Document 20865-2 Fil ed 05/30/12 Page 18 of 38
Instead, they again attempt to divelt attention from this hypothetical excavation by pointilig to
pre-Katrina documents concerning WGJ's other "excavation and backfill activity" near the South
Breach.
77
However, as WGI detailed in its opening brief, none 'ofthe other WGI excavations on
the Saucer Marine site come close to matching the location and dimensions of the fictional
excavation shown in Dr. Bea's Case I cross-sections.
78
Thus, the other excavations, which Dr.
Bea chose not to model, are irrelevant to determining the reliability of his South Breach Case I
cross-sections and the flow and stability analyses that he ran based on these cross-sections.
79
Finally, as discussed previously with respect to the North Breach Case I cross-
sections, the fact that Dr. Bea lIsed inductive reasoning to theorize, based on post-Katrina aerial
and ground photographs, that WGI might have excavated and backfilled a 25-foot wide x 50-foot
long x 18-foot deep excavation at the South Breach pre-Katrina is irrelevant.
8o
Dr. Bea admits
he has no pre-Katrina evidence to support the theory: "I don't think we were able to trace [it] . ..
The document trai1 went cold."SI Undoubtedly, as Plaintiffs point out, there are times that
inductive reasoning, based on scientific judgment and experience, may be appropriate.
S
] But in
this instance, where a large and extraordinarily detailed record of pre-Katrina excavation
activities in the EBIA exists from WGl's files, the USACE's files, WGI's subcontractors' files and
77
78
WGI Mem ., at pp. 22-23. Plaintiffs argue that Dr. Bea never claimed that the 18-foot deep, 25-toot wide
excavation shown in his South Breach Case 1 cross-section was a result of WGI's grid trenching activities.
Opposition at p. 20. Rather, they claim, grid trenching " is a separate issue at Saucer Marine." ld. WGI
accepts Plaintiffs' admission. Of course, Dr. Bea's Report states, under the heading "South Breach Site Case I
Cross Sections": "The currently available information indicates this excavation was associated with foundation
and contaminated soils removals (Figure 32a, Figure 32b) and north-south grid trenching performed at this
location 011 tile EBIA . .. by WGI (Figure 32c)." Bea Report, App. B at p. 35 (emphasis added) .
79
Moreover, Plaintiffs suggestion that Dr. Bea has somehow "concluded" that other WGI excavations on Saucer
Marine "played a substantial factor in causing the [tloodwall) failure" is absurd . Opposition at p. 20. Dr. Bea
testified in his April 16, 2012 deposition that in order to identit)" which excavations in the EBIA were "deep
enough and close enough to the I-wall" to contribute to the I-wall's failure "we would ha\'e to do a correlation
for you to identi fy speci fic excavations, then connect that to their depth, then corre.lale that with the contact
elevation tor the varied swamp-marsh deposit." WGI Mem. Ex. 10, Bea Oep., Vol. 3 at pp. 85:5-87: 10. When
asked if he had done such a correl ation, Dr. Bea said, "no." ld. at p. 85: 14- 15.
80
See Opposition at pp. 19, 21 .
81
WGI Mem., Ex. 9, Bea Oep. , Vol. 2 at pp. 116:3-\ 17:6.
82
- 14
1095224v I
Case 2:05-cv-04182-SRD-JCW Document 208652 Filed 05/30112 Page 19 of 38
deposition testimony, "inductions" i'om a post-Katrina photograph are not evidence of
excavations WG J performed in the EB IA pre-Katrina. Dr. Bea ignores this record because it
does not support his causation theory.
2. The permeability value that Dr. Bea assigned to the backfill in his
South Breach Case 1 cross-sections is not consistent with the backfill
that WGI used in the EBIA
Dr. Bea's SOllth Breach Case I cross-sections assume that WGJ would have
backfilled the fictional, 18-foot deep excavation with river sand.
83
Dr. Bea purported to assign
the river sand-at least in his Report-a permeability value of lxlO-
2
cm/sec or .01 cm/sec.
84
But in his SEEP/W model, Dr. Bea instead assumed the alleged South Breach Case I excavation
was backfilled with a material having a permeability value of 1 cm/sec, which is 100 times more
permeable than river sand.
85
Indeed, Plaintiffs' hydrogeology expert confirms that a permeability
value oft cm/sec is consistent with "clean" shell till that does not contain any sand.
86
None of Plaintiffs' experts contend (and none of the contemporaneous documents
in the record indicate) that WGI ever backfilled an excavation anywhere on the EBIA with clean
shell fill or gravel.
87
For this reason, as WGI argued in its opening brief-and Plaintiffs did not
dispute--Dr. Bea's seepage and stability models based on the South Breach Case I cross-
sections do not represent the pre-Katrina geotechnical conditions that existed in the EBIA.88
Once again, Dr. Bea has either ignored the facts, or deliberately manipulated them to serve his
purposes. Either way, his South Breach Case I cross-sections and related computer models are
unreliable and should be excluded.
83
See Bea Repol1. App. B. Figures 33 & 35; WGI Mem .. Ex. 9. Bea Dep. Vol. 2 at pp. 254:22-255 :3.
84
Bea Repol1. App. C at p. 2 (Table I).
85
WGI Mem., at p. 32 (citing Ex. 15, Silva-Tulia Decl., Ex. B at 1 l.
86
Id. at p. 32 (citing Rogers Oep. Vol 2 at p. 245: 10-16).
87
WGI Mem., at p. 32.
88
Id.
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1095224v I
~ Case 2:05-cv- 04182-SRDJCW Document 20865-2 Filed 05/30/.12 Page 20 of 38
D. South Breach Case 2 Cross-Sections
In its opening brief, WGI argues that Dr. Bea's South Breach Case 2 cross-
sections are unreliable for two basic reasons. First, they show a narrow, 99-foot long
(perpendicular to the floodwall) x 10-foot deep uti Iity trench, extending from the floodwall
towards the IHNC, a teature that never existed before Katrina.
89
Second, Dr. Bea inappropriately
analyzed these cross-sections in two dimensions. As a result, in his SEEP/W model, the
"narrow" trench widens to the entire north-south dimension of the floodwal1.
9o
Plaintiffs have no
credible arguments to refute these contentions, and therefore, Dr. Bea's Case 2 cross-sections
(and any analysis based on the cross-sections) should be excluded.
1. Dr. Bea's assumption that WGI excavated a deep utility trench in the
vicinity of the South Breach is belied by the record evidence.
Dr. Bea's sole support for the existence of the alleged deep trench in his cross-
sections is a 1969 project plan that shows a buried six-inch water line and two-inch gas line
penetrating the floodwall at the location of the South Breach.
91
However, WGJ has presented
irrefutable, contemporaneous evidence that the utility lines that WGI removed at Saucer Marine
did not result in a ten-foot deep trench adjacent to the floodwall.
92
The trenches in fact were
shallow and they were backtilled in one-foot lifts and compacted.
93
Based on this evidence,
Plaintiffs now concede that the hypothetical trench shown in Dr. Bea's Case 2 cross-sections
could not have been the result of WGI removing a 6-inch water line at Saucer Marine as
represented in Dr. Bea's Report.
94
However, Plaintiffs continue to insist that Dr. Bea's cross-section showing a 10
foot deep utility trench next to the floodwall reasonably represents pre-Katrina conditions at the
89
WGI Mem., at pp. 25-27.
90
Jd, at p. 27.
91
Opposition at p. 21 (noting that the eie\'ations of the buried util ities shown in the) 969 plans support Dr. Sea's
assumption that WGI must have excavated a I O-foot deep trench),
WGI Mem" at pp. 26-27 (citing Exhibits 22-24).
9)
Id.
94
Opposition at p, 2 J ("Defendants' characterization of the "vater line removal appears accurate" ).
- 16
1095224v 1
Case 2:05-cv-04182-SRD-JCW Document 20865-2 Filed 05(30(12. Page 21. of 38
..
South Breach because WGI does not have a contemporaneous photograph showing the actual
depth and removal of the 2-inch gas line. Thus, they claim, the 1969 plan is "compelling
evidence" that, in 2003, WG I excavated a I O-foot deep trench next to the floodwal1.
95
Plaintiffs'
argument is unavailing .. First, Plaintiffs admit that the 1969 plan did not accurately predict the
actual depth of the water line that WGI removed at Saucer Marine.
96
Second, Dr. RogerS, who
developed the Case 2 cross-sections, testified that he was unable to find any evidence that the 2
inch gas line, as shown in the 1969 plan, ever existed.
97
Finally, the work plans, daily reports
and photographs of WGI's removal of other 2 or 3-inch gas line in the EBIA prove that the
associated excavations at the floodwall were shallow.
98
Accordingly, Plaintiffs cannot sustain
their burden to prove, by a preponderance of the evidence, that Dr. Bea's South Breach Case 2
cross-sections are reliable.
99
2. Dr. Bea's two-dimensional modeling of the South Breach Case 2 cross
sections render his analyses wholly unreliable.
Plaintiffs do not dispute that if Dr. Bea used only a two-dimensional model to
analyze the long, narrow trench shown in his Case 2 cross-sections, the results would be
misleading and inappropriate. Instead, they argue that Dr. Bea rectified this problem by using
"[t]he results from previous analyses of a similar three-dimensional feature" to somehow
"interpret the results" of his two-dimensional analyses.
IOO
Whether or not Dr. Bea analyzed some
sort of "similar" trenches in a three-dimensional model is completely irrelevant. Despite
repeated requests from Defendants to review this supposed three-dimensional analysis, Dr. Bea
(and his graduate student, Mr. Cobos-Roa) claim the 3-D model was lost and/or stolen and thus
95
Id.
fd.
97
WGI Mem., Ex. 13, Rogers Oep. Vol. 2 at pp. 212:21-213: J4.
98
See, e.g., WGJ Mem., Exs. 22-23 (work plans and QARs); Ex. 52 (photographs of gas line removal at Boland
Marine, Indian Towing and Mayer Yacht).
See Daubel't, 509 U.S. at p. 592, til.IO.
100 Opposition at pp. 21-22.
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