Katrina MRGO Trial: Judge Finds Army Corps Negligent, Awards $719K to Flood Victims

The Mississippi River Gulf Outlet, a 76-mile navigation channel the Army Corps of Engineers dredged starting in 1958, was designed to shorten the commercial shipping route between New Orleans and the Gulf of Mexico. Over the following decades the channel widened on its own, eroding the surrounding marsh until what had been a 650-foot-wide cut grew to nearly 2,000 feet. The Corps knew by the late 1950s that the unstable soils would shift and authorized foreshore protection in the late 1960s, but the work was not started until 1985 and was still incomplete by 2005.

When Hurricane Katrina struck on August 29, 2005, the degraded banks and weakened levees alongside the MRGO offered almost no resistance to the storm surge. The corridor functioned as a funnel. Surge poured west through St. Bernard Parish and into the Lower Ninth Ward, destroying tens of thousands of homes and killing hundreds of residents. Over 400 property owners eventually filed suit in federal court against the United States under the Federal Tort Claims Act.

Judge Duval selected seven property owners as bellwether plaintiffs to go to trial, a process used in mass-tort litigation to test core legal and factual issues before the broader docket. Joseph Bruno and L. Scott Joanen of Bruno and Bruno were among the plaintiff attorneys who handled the case. After 19 days of testimony covering hydrology, engineering records, and the Corps's internal documents, the court found that three plaintiff groups had proven government liability in full.

In his November 2009 opinion, Judge Duval rejected the government's argument that its maintenance decisions were protected policy judgments. The Corps's failure to reinforce the channel's banks, he concluded, was not a product of deliberate policy choices: 'the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness.' Total damages for the prevailing plaintiffs came to approximately $719,698, covering property loss and related harm to residents of St. Bernard Parish and the Lower Ninth Ward. Four of the seven plaintiffs did not prevail.

The ruling drew immediate national attention. It was the first federal court decision holding a federal agency liable for Katrina flood losses, and it opened the prospect of claims from tens of thousands of additional affected property owners. Government reports at the time estimated potential exposure at hundreds of billions of dollars.

The victory did not survive on appeal. The Fifth Circuit reversed the judgment for the plaintiffs on September 24, 2012, finding that the Corps's maintenance decisions fell within the Flood Control Act of 1928's immunity provisions and the discretionary function exception to the FTCA. The appellate panel concluded that the choices the Corps made about levee reinforcement, however ill-advised, were the kind of policy and engineering judgments Congress intended to shield from judicial second-guessing. The approximately $719,698 in damages was not collected.