Tens of thousands more could join the legal fight in the coming years, lawyers told federal judges Wednesday in a Houston courtroom.
As of Wednesday, 80 federal and two state lawsuits had been filed on behalf of 1,001 homeowners and businesses damaged by floodwaters, according to a Houston Chronicle review of federal and state court dockets. And seven new cases hit the docket in the past two days alone, representing 237 flood victims.
With that steady influx in mind, two top federal judges jointly presided Wednesday over a standing-room crowd of marquee lawyers vying for leadership spots over large groups of clients who suffered flooding loss after the hurricane. Three lawyers from the Justice Department also attended the hearing as well as one attorney for the U.S. Army Corps of Engineers.
Jay Edelson, a Chicago lawyer who was the first of several Wednesday to present his leadership proposal to the judges, said afterward that the nearly five-hour session stood out in terms of productivity. The vetting hearings are usually spent with lawyers touting their credentials, but in this instance he said the court cut to the chase.
"The court was laser-focused on trying to evaluate how the attorneys would litigate the cases, testing their fluency on class actions, takings cases and large and diverse groups of clients," he said.
The judges also nudged the Justice Department to show its hand.
At one point, Jacqueline Brown, an attorney from the government's environment and natural resources division, said that it's vital from her vantage point that the cases be consolidated. "I think it's important for plaintiffs to sort out what they are alleging so we know what we are responding to," she told the court.
The bulk of the lawsuits are before the U.S. Court of Federal Claims, a specialized federal court in Washington, D.C. that handles damage claims against government entities. The chief judge of that court recruited local help to vet the lawyers who will oversee the cases for clients in various subgroups. She said she anticipates making trips to Houston monthly to set a course for the Harvey suits.
The dam release lawsuits target the same government entities for choosing to release the water: The 80 federal suits allege the U.S. Army Corps of Engineers is responsible for damages, while two suits filed in state civil court contend the Harris County Flood Control District is responsible; one suit also includes the City of Houston as a defendant. As of Wednesday, twelve lawsuits in federal court are class actions and the rest are individual or multi-party cases.
The array of surnames of property owners who have sued — Khoury, Ludwidsen, Reyes, Nguyen, Hollis, Pagnotto, Mumba — reflects the vast cultural diversity of the Houston region as well as the breadth of the flood damage. Enough cases have been filed to prompt the court clerk to create a new Hurricane Harvey drop-down menu in the court's electronic search menu.
The aim of the Wednesday hearing at the Houston courthouse was to begin to sort the cases into sub-groups and assigning lead attorneys.
Among the 80-plus lawyers in the room were litigators from Washington, D.C., New Jersey and Louisiana, but the bulk were from Houston. That included Brian Beckcom, a trial lawyer in Memorial who represents 200 clients including his wife's uncle who has been living in a tent in his driveway since his home was inundated.
Chief Judge Susan Braden of the federal claims court in Washington, who recently ruled in favor of a group of New Orleans flood victims in a post-Katrina lawsuit, is managing all of the post-Harvey cases at this early phase. Braden enlisted Chief U.S. District Judge Lee H. Rosenthal — whom she identified at a previous hearing as an old family friend — to help evaluate the attorneys angling for leading roles.
Partway through the tryout, attorney Jeff Raizner told the judges, "I think we're starting to get a sense of the magnitude and complexity of this and many of us are sitting on a sizable group of cases that are not yet filed."
Rosenthal, known to inject levity into intense legal proceedings, likened herself to a boa constrictor trying to gain control of an elephant but indicated the herculean task was doable.
The lineup of attorneys on Wednesday variously suggested Braden and Rosenthal appoint one, two, three or four lead lawyers, depending on how they determine the sub-groups of claimants. One possibility is dividing the claims into damage from reservoir overflow upstream of the dams and damage caused downstream by the controlled release of floodwater, under the premise that the facts are different and clients interests may be diametrically opposed.
Attorney Larry Dunbar, who is also an engineer, told the judges the downstream clients need to know when and why the floodgates were opened and the potential impact to property.
But those facts, he said, "Are irrelevant to upstream folks."
Another way to proceed is to have lead lawyers for class actions and individual cases both upstream and downstream. The Justice Department and at least one law firm back the idea of having one overarching counsel for all the plaintiffs.
The so-called "takings" lawsuits under the Fifth Amendment argue that the government knew that releasing water from -- or letting is accumulate in -- the swollen reservoirs would flood homes and businesses and they made the choice to temporarily "take" people's property as a floodway.
In addition to the Addicks and Barker dam cases, lawsuits are lining up over post-Harvey releases from another flooded waterway.
Attorney Cade Bernsen filed a federal lawsuit Wednesday on behalf of 137 residents of a neighborhood in Vidor, near Beaumont, whose homes were flooded by the Army Corps' controlled releases from Steinhagen Lake.
And four civil suits in state court seek relief for 65 parties who say the government "took" property when it began releasing water from the Lake Conroe dam into the West Fork of the San Jacinto River. The Conroe claims seek damages from the San Jacinto River Authority.
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