# In the United States Court of Federal Claims No. 05

- 1119 L Filed : May 1 , 2015

**************************************** * * ST. BERNARD PARISH GOVERNMENT * AND OTHER OWNERS OF REAL * PROPERTY IN ST. BERNARD PARISH * OR THE LOWER NIN TH WARD OF THE * CITY OF NEW ORLEANS, * * Plaintiff s , * * v. * * THE UNITED STATES, * * Defendant. * * * ****************************************

MEMORANDUM OPINION A ND FINAL ORDER ON EVIDEN TIARY ISSUES From December 12, 2011 to December 15, 2011, the court convened a trial in New Orleans, Louisiana

. 12/12/11

– 12/ 15/11 TR 1

– 1236. The exhibits identified in this Order were introduced and comprise the record as to liability. The court’s rulings regarding evidentiary issues are discussed herein. Federal Rules of Evidence; Rule of the United States Court of Federal Claims (“RCFC”) 26 (General provisions governing discovery).2

I. DOCUMENTS PR OFFERED BY THE PARTIES WITHOU T OBJECTION T HAT THE COURT RULE S ARE ADMITTED INTO EVIDENCE . A. P laintiffs’ Trial Exhibits . 1 1. Plaintiffs’ SPX Exhibits . SPX.0004 SPX.0008 SPX.0138 SPX.0161 SPX.0163 SPX.0406 SPX.0479 SPX.0487 SPX.0492 SPX.0501 SPX.0535 SPX.0541 SPX.0544 SPX.0545 SPX.0546 SPX.0549 SPX.0625 SPX.0626 SPX.0627 SPX.0628 SPX.0629 SPX.0631 SPX.0632 SPX.0633 SPX.0634 SPX.0635 SPX.0636 SPX.0637 SPX.0638 SPX.0639 SPX.0640 SPX.0641 SPX.0642 SPX.0643 SPX.0644 SPX.0645 SPX.0646 SPX.064 7 SPX.0648 SPX.0649 SPX.0650 SPX.0651 SPX.0652 SPX.0653 SPX.0654 SPX.0655 SPX.0656 SPX.0657 SPX.0658 SPX.0659 SPX.0660 SPX.0661 SPX.0662 SPX.0663 SPX.0664 SPX.0665 SPX.0666 SPX.0667 SPX.0668 SPX.0669 SPX.0670 SPX.0671 SPX.0672 SPX .0673 SPX.0674 SPX.0675 SPX.0676 SPX.0677 SPX.0678 SPX.0679 SPX.0680 SPX.0681 SPX.0682 SPX.0683 SPX.0700 SPX.0701 SPX.0702 SPX.0704 SPX.0705 SPX.0706 SPX.0707 SPX.0708 SPX.0709 SPX.0710 SPX.0711 SPX.0712 SPX.0713 SPX.0714 SPX.0717 SPX.0718 SPX.0738 SPX.0740 SPX.0885 SPX.0893 SPX.0894 SPX.0895 SPX.0901 SPX.0905 SPX.0908 SPX.0909 SPX.0910 SPX.0911 SPX.0912 SPX.0913 SPX.0914 SPX.0915 SPX.0916 SPX.0917 SPX.0918 SPX.0919 SPX.0920 SPX.0921 SPX.0922 SPX.0923 SPX.0 924 SPX.0925 SPX.0926 SPX.0927 SPX.0928 SPX.0929 SPX.0930 SPX.0931 SPX.0932 SPX.0933 SPX.0934 SPX.0935 SPX.0936 SPX.0937 SPX.0938 SPX.0939 SPX.0940 SPX.0941 SPX.0942 SPX.0943 SPX.0944 SPX.0945 SPX.0946 SPX.0947 SPX.0948 SPX.0949 S PX.0950 SPX.0951 SPX.0952 SPX.0953 SPX.0954 SPX.0955 SPX.0956 SPX.0957 SPX.0958 SPX.0959 SPX.0960 SPX.0961 SPX.0962 SPX.0963 SPX.0964 SPX.0965 SPX.0966 SPX.0967 SPX.0968 SPX.0969 SPX.0970 SPX.0971 SPX.0972 SPX.0973 SPX.0974 SPX.097 5 SPX.0976 SPX.0977 SPX.0978 SPX.0979 SPX.0980 SPX.0981 SPX.0982 SPX.0983 SPX.0984 SPX.0985 SPX.0986 SPX.0987 SPX.0988 SPX.0989 SPX.0990 SPX.0991 SPX.0992 SPX.0993 SPX.0994 SPX.0995 SPX.0996 SPX.0997 SPX.0998 SPX.0999 SPX.01000 SPX.01001 SPX.01002 SPX.01003 SPX.01004 SPX.01005 SPX.01006 SPX.01007 SPX.01008 SPX.01009 SPX.01010 SPX.01011 SPX.01012 SPX.01013 SPX.01014 SPX.01015 SPX.01016 SPX.01017 SPX.01018 SPX.01019 SPX.01020 SPX.01021 SPX.01022 SPX.01023 SPX.01024 SPX.01025 SPX.01026 SPX.01027 SPX.01028 SPX.01029 SPX.01030 SPX.01031 SPX.01032 SPX.01033 SPX.01034 SPX.01035 SPX.01036 SPX.01037 SPX.01038 SPX.01039 SPX.01040 SPX.01053 SPX.011 54 SPX.01156 DX

- 41 DX

- 53 DX

- 88 DX

- 138 DX

- 193 DX

- 202 DX

- 211

1 As discussed in the parties’ March 23, 2012 Joint Submission O f Exh ibits Offered Into Evidence (Dkt

. No. 178) (“Joint Submission”), Plaintiffs have offered into evidence “SPX” exhibits appearing on Plaintiffs’ pretrial exhibit list in this case , together with three categories of exhibits that were admitted in Robinson v. United States , Case No. 06

- CV

- 2268 (E.D. La.) (“ Robinson ”): Plaintiff (“PX”) exhibits; Defendant (“DX”) exhibits; and J oint (“JX”) exhibits. In its May 1, 2015, Memorandum Opinion And Order, the court indicates Robinson exhibits with the letter “R,” i.e. , “RPX, ” “RDX,” and “RJX.”3 2. Robinson Exhibits. DX

- 0001; DX

- 1104; JX

- 0195. B. The Government’s Trial Exhibits. 1. The Government’s DX Exhibits. DX

- 1 DX

- 49 DX

- 53 DX

- 78 DX

- 79 DX

- 80 DX

- 81 DX

- 86 DX

- 88 DX

- 91 DX

- 105 DX

- 111 DX

- 115 DX

- 133 DX

- 138 DX

- 174 DX

- 174(a) DX

- 193 DX

- 195 DX

- 199 DX

- 202 DX

- 208 DX

- 210 DX

- 211 DX

- 212 DX

- 213 DX

- 214 DX

- 215 DX

- 216 DX

- 217

2. Robinson Exhibits. DX

- 1; DX

- 1104 ; JX

- 195

. C. Plaintiffs’ Written Direct Testimony. Dkt. No. 158 (Suhayda) ; Dkt. No. 159 (Kemp)

. D. The Government’s Written Direct Testimony. Dkt. No. 160 (Britsch) ; Dkt. No. 161 ( Resio)

. E. Plaintiffs’ Deposition Designations. 2 Nancy Powell Ja nuary 30, 2008 deposition: 1; 6

– 15; 17

– 26; 28

– 30; 42

– 43; 50

– 53; 63

– 74; 79

– 84; 106

– 07; Fe bruary 8, 2011 deposition: 1; 9

– 20; 25

– 37; 41

– 47; 55

– 66; 84

– 99; 106

– 09; 112

– 15; 123

– 37. Greg Miller 1; 8

– 15; 23

– 35; 45

– 46; 55

– 63; 65

– 76; 78

– 81; 85

– 87; 107

– 08. Michael Park 1

– 11; 36

– 48; 77

– 79.

2 On October 28, 2011, Plaintiffs filed a Motion T o Desi gnate Deposition Transcript. Dkt. No. 134. On November 4, 2011, the Government filed a Motion To Designate Deposition Testimony. Dkt. No. 140. On November 14, 2011, t he Gover nment opposed Plaintiffs’ Motion T o Designate Deposition Testimony, and submitted cross

- designations to the extent the court granted Plaintiffs’ M otion. Dkt. No. 145

. On November 21, 2011, Plaintiffs filed a Response to the Government’s November 4, 2011 Motion. Dkt. No. 149. On November 23, 2011, Plaintiffs filed a Reply. Dkt. No. 153. On December 2, 2011, the court admitted the initial deposition designati ons. 12/2/11 Minute Orders (admitting Dkt. 134, 140).4

Donald Resio 1; 5

– 15; 18

– 27; 29

– 31; 34

– 39; 47

– 56; 64

– 74; 84

– 87; 89

– 118; 125

– 31; 134

– 36. Jerry Foster 1; 8

– 22; 25

– 31; 37

– 38 ; 45

– 49; 51

– 52; 58

– 60; 63

– 73; 75

– 80; 92

– 1 03; 110

– 23; 130

– 35; 141

– 58; 165

– 67; 175

– 79; 185

– 86; 199

– 200; 210; 221

– 25; 228

– 30; 234

– 41; 246

– 49. Michelle Daigle 1; 6

– 13; 58

– 59; 78

– 83; 86

– 87; 107

– 08; 110

– 13; 135

– 37; 141

– 42. Christopher Gilmore 1; 5

– 6; 9

– 12. Steve Patorno 1

– 7; 9

– 20; 26. Linda Mat hies 1; 7

– 11; 15

– 21; 43

– 50; 55

– 67; 75

– 82; 98

– 99. Sue Hawes 1; 4

– 9; 21

– 22; 33

– 41; 44

– 45. Keith O’Cain 1; 9

– 13; 16

– 17; 28

– 30; 32

– 33; 36; 56; 73

– 78; 81

– 86; 88

– 90; 92

– 93; 106

– 22. Rick Broussard 1; 6

– 8; 26

– 30; 38; 4 2

– 43. Gary Zimmerer 1; 7

– 25; 27

– 40; 45

– 48; 50

– 59; 67

– 68; 81

– 82; 88

– 89; 101

– 04; 107

– 08; 117

– 25; 128

– 29; 139

– 52; 156

– 61. Tommoso “Tommy” G. Tommaseo Oc tober 18, 2010 deposition: 22:2

– 20; 27:19

– 28:11; 36:7

– 1 8; 54:20

– 55:15; 61:4

– 8; 71:16

– 25; 81:11

– 82:4; 90:19

– 91:6; 99:14

– 23; 1 09:4

– 11; 131:24

– 132:13; 157:15

– 19; 173:15

– 174:20. Steven and Cynthia Bordelon Oc tober 14, 2010 deposition: 17:8

– 15; 18:5

– 19:1. Edward John Robin, Jr. Oct ober 13, 2010 deposition: 18:17

– 19:12; 21:17

– 22; 26:21

– 27:15. Rod W. Willhoft Octo ber 20, 2010 dep osition: 24:21

– 2 5:9; 36:9

– 36:24; 43:24

– 44:2. Gwendolyn and Henry Adams Oc tober 15, 2010 deposition: 18:9

– 19:1. Craig P. Tafaro, Jr. Jan uary 13, 2011 deposition: 24:18

– 25:5; 26:4

– 24; 40:12

– 41:21; 78:18

– 79:2; 98:2

– 15; 103:1

– 4; 114:4

– 115:25; 122:19

– 22. Michelle Walsh Jan uary 13, 2011 deposition: 46:16

– 20.5

Mylinda Gettys Jan uary 12, 2011 deposition: 22:21

– 23:9; 30:9

– 24; 31:11

– 13; 45:22

– 46:15; 50:24

– 51:17; 56:11

– 19. F. The Government’s Deposition Designations. Tommoso “Tommy” G. Tommaseo Octob er 18, 2010 deposition: 1; 5:13

– 8:3; 10:18

– 11:5; 14:13

– 16:4; 19:17

– 20:13; 20:22

– 21:22; 24:6

– 10; 26:22

– 27:9; 32:2

– 9; 34:15

– 36:6; 38:1

– 9; 38:19

– 39:3; 39:13

– 21; 42:5

– 45:19; 69:25

– 71:15; 78:23

– 79:2; 79:25

– 81:10; 88:6

– 90:18; 97:1

– 99:13; 104:2

– 106:19; 117:12

– 124:25; 126:1

– 13; 129:3

– 12; 130:7

– 24; 133:12

– 16; 135:13

– 24; 139:6

– 144:9; 153:18

– 157:14. Steven John Bordelon October 14, 2 010 deposition: 1; 8:1

– 9:11; 13:12

– 14:8; 14:20

– 24; 16:1

– 17:7; 20:16

– 22:10; 24:25

– 25:9; 26:4

– 14; 30:4

– 9; 30:16

– 20; 31:15

– 32:4; 32:9

– 21; 3 7:2

– 7. Brad Lee Robin Octo ber 13, 2010 deposition: 1; 7:5

– 9; 11:17

– 22; 13:2

– 4; 14:19

– 15:23; 24:13

– 15; 33:1

– 17 ; 34:6

– 20; 37:5

– 39:9; 40:24

– 41:18; 45:18

– 46:21; 48:2

– 49:12; 56:15

– 58:24; 65:2

– 7; 65:14

– 68:23; 71:15

– 72:3; 75:11

– 23; 80:7

– 25; 82:2

– 8; 89:1 2

– 25; 93:4

– 10; 95:11

– 16; 97:12

– 98:24; 99:17

– 100:4; 101:11

– 14; 119:1

– 12. Edward John Robin, Jr. October 13, 2 010 deposition: 1; 6:5

– 8; 16:3

– 8; 21:25

– 24; 23:22

– 24:19; 25:7

– 27:15; 28:16

– 18; 33:9

– 10; 35:1

– 4. Rod Wilhoft Octob er 10, 2010 depositi on: 1; 5:19

– 24; 7:24

– 8:1; 8:18

– 22; 9:1

– 11:8; 17:19

– 18:15; 20:6

– 25; 22:1

– 11; 23:6

– 16; 28:3

– 11; 29:2

– 30:23; 32:9

– 13; 34:5

– 24; 42:22

– 43:8; 44:11

– 17; 45:14

– 46:1; 48:5

– 14. Gwendolyn and Henry Adams Octo ber 15, 2010 deposition: 1; 5:9

– 15; 6:8

– 13; 7:8

– 22; 8:18

– 9:4; 12:21

– 13:18; 15:19

– 16:8; 19:2

– 20:13; 27:23

– 28:16; 38:20

– 39:7. Craig Taffaro Janua ry 13, 2011 deposition: 1; 19:7

– 9; 41:22

– 42:13; 45:18

– 47:19; 48:9

– 49:13; 51:24

– 53:20; 66:16

– 67:3; 69:2

– 15; 71:14

– 17; 73:10

– 14; 83:20

– 24; 93:12

– 95:23; 96:21

– 98:1; 99:11

– 101:11; 122:6

– 18.6

Michelle Walsh January 12, 2011 depo sition: 1; 22:8

– 23:8; 38:19

– 40:21; 49:2

– 19; 52:2

– 17; 56:7

– 65:21. Mylinda Gettys Janua ry 12, 2011 deposition: 1; 8:13

– 9:13; 32:14

– 17; 34:20

– 35:13. Nancy Pow ell Jan uary 30, 2008 deposition: 39:20

– 41:1; 45:10

– 22 ; February 8, 2011 deposition: 49

– 52. Greg Miller 37

– 40; 89:1

– 90:5. Michael Park 13:1

– 23; 29:1

– 34; 58:16

– 61:14. Donald Resio 138

– 1 61:1

– 6. Jerry Foster 202

– 05; 214

– 17. Sue Hawes 23

– 3 2; 42

– 43; 46

– 52. Keith O’Cain 21

– 24. Gary Zimmerer 60

– 66; 76:15

– 78:21; 90

– 91:16; 98:16

– 99. G. The Court’s Resolution. The court rules that the documents referenced herein, at Section I , are admitted into evidence

. See Court Exhibit A § I. II. DOCUMENTS PR OFFERED BY PLAINTIFF S , TO WHICH THE GOVERNMENT OBJECT S . 3 A. Plaintiffs’ Trial Exhibits. 1. Plaintiffs’ SPX Exhibits.

a. Interagency Performance Evaluation Task Force, Independ ent Levee Investigations Team, A nd Team Louisiana Exhibits. P laintiffs pr offer ed twenty

- nine exhibits , consisting of reports and associated documents prepared by the Interagency Performance Evaluation Task Force (“IPET”) , the Independent Levee Investigations Team (“ILIT”), and Team Louisiana. Dkt. No. 178

- 1, at 1

– 3. The G overnment

3 The Government object s to the admission of each of the documents listed in this section, “renew[ing] all evidentiary objections asserted at trial” and “object[ing] that each exhibit not used at trial lacks foundation to be admitted into the record.” Dkt. No. 178

- 1, at 1 n.1.7

objects to twenty

- five 4 of these exhibits in their entirety on relevance and hearsay grounds. Dkt. No. 178

- 1, at 1

– 3. The Government also objects to the admission of two exhibits as whole documents , but does not object to the admissi on of portions actually discussed with the witness. Dkt. No. 178

- 1, at 1

– 2 (objecting to SPX.0010 and SPX.0023). 5 As to relevance, the IPET, ILET, and Team Louisiana exhibits are reports that discuss why the Southeast Louisiana’s Hurricane Protection System (“HPS”) failed. See, e.g. , SPX.0001, at I

1; SPX.0027, at PDF 2, xix; SPX.0029, at i. The court rules that t hese exhibits are relevant, because they “ha[ve] a tendency to make a fact more or less probable” and “the fact is of consequence in determ ining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible” ). 6 As to hearsay, 7 these exhibits are evaluations of the HPS by groups commissioned by the Army Corps

. See , e.g. , SPX .0001, at I

- 1 (“ITEP was established by the Chief of [the Army Corps of] Engineers [“Army Corps”] to determine the facts concerning the performance of the HPS in New Orleans and Southeast Louisiana during Hurricane Katrina.”); SPX.0027, at PDF 2, xix ( T he ILIT was funded by grants from the National Science Foundation , and the ILIT “report presents the results of an investigation of the performance of the New Orleans regional flood protection system during Hurricane Katrina[.]”); SPX.0029, at i (Team Louisi ana was “commissioned .

. . by the Louisiana Department of Transportation and Development .

. . to assemble a team of Louisiana

based academic and private sector experts to collect forensic data related to the failure of the levee systems around greater Ne w Orleans that occurred during .

. . Hurricane Katrina[.]”) (internal quotation marks omitted). For these reasons, the court rules that these twenty

- five exhibits are

4 The twenty

- five exhibits consist of twenty

- two IPET exhibits, two ILIT exhibits, and one Team Louisiana exhibit. The twenty

- two IPET exhibits are: SPX.0001; SPX.0002; SPX.0003; SPX.0005; SPX.0006; SPX.0007; SPX.0009; SPX.0011; SPX.0012; SPX.0013; SPX.00 14; SPX.0015; SPX.0016; SPX.0017; SPX.0018; SPX.0019; SPX.0020; SPX.0021; SPX.0022; SPX.0024; SPX.0025; SPX.0026. The two ILIT exhibits are: SPX.0027; SPX.0028. The Team Louisiana exhibit is: SPX.0029. Of these twenty

- five exhibits, seven were admitted in their entirety in Robinson and five were admitted, in part, in Robinson

. See Dkt. No. 178

- 1, at 1 n.2.

5 Of these two exhibits, one was admitted in full in Robinson

. 6 Federal Rule of Evidence 401 provides that “[e] vidence is relevant if: (a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.” )

.

7 Although it would be impracticable to conduct an extensive multi

- factor analysis of the hearsay exclus ions and exceptions potentially applicable to every exhibit to which the Government objects on hearsay grounds, the court has carefully considered Federal Rules of Evidence 801, 803, and 804.8

public records and business records , and therefore are exempt from hearsay. See F ED . R. E VID . 803(8) 8 ; F ED . R. E VID . 803 (6)

. 9 For these reasons, the court rules that the IPET, ILIT, and Team Louisiana reports and associated documents are admitted

. See Court Exhibit A § II.A.1.a.

b. United States Army Corps Of Engineers Exhibits. Plaintiffs proffer ed 217 exhibits, consisting of reports , studies, design memoranda, emails, reconnaissance reports, and Flood Safety Program documents from the Army Corps. Dkt. No. 178

- 1, at 3

– 19. The Government objects to the admission of 212 of these exhibits in their entirety 10

8 Federal Rule of Evidence 803(8) provides for excepting from the hearsay prohibition “[a] record or state ment of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report .

. . ; or (iii) .

. . factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness

. ” F ED . R. E VID . 803(8)

.

9 Federal Rule of Evidence 803(6) excepts from the hearsay prohibition: [a] record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by

— or from information transmitted by

— someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) o r (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. F ED . R. E VID . 803( 6 )

.

10 The 212 Army Corps exhibits are: SPX.0100 ; SPX.0101; SPX.0102; SPX.0103; SPX.0104; SPX.0105; SPX.0107; SPX.0108; SPX.0113; SPX.0117; SPX.0118; SPX.0119; SPX.0123; SPX.0127; SPX.0128; SPX.0129; SPX.0130; SPX.0131; SPX.0132; SPX.0133; SPX.0134; SPX.0135; SPX.0136; SPX.0137; SPX.0140; SPX.01 41; SPX.0142; SPX.0143; SPX.0144; SPX.0145; SPX.0146; SPX.0147; SPX.0148; SPX.0151; SPX.0152; SPX.0155; SPX.0156; SPX.0157; SPX.0158; SPX.0159; SPX.0160; SPX.0162; SPX.0164; SPX.0166; SPX.0167; SPX.0168; SPX.0170; SPX.0172; SPX.0173; SPX.0174; SPX.0175; SP X.0176; SPX.0178; SPX.0180; SPX.0184; SPX.0185; SPX.0186; SPX.0187; SPX.0188; SPX.0189; SPX.0190; SPX.0191; SPX.0192; SPX.0193; SPX.0194; SPX.0195; SPX.0196; SPX.0197; SPX.0198; SPX.0199; SPX.0200; SPX.0201; SPX.0202; SPX.0203; SPX.0204; SPX.0205; SPX.0206 ; SPX.0207; SPX.0208; SPX.0209; SPX.0210; SPX.0211; SPX.0212; SPX.0213; SPX.0214; SPX.0215; SPX.0216; SPX.0217; SPX.0218; SPX.0219; SPX.0220; SPX.0222; SPX.0223; SPX.0224; SPX.0225; SPX.0226; SPX.0229; SPX.0230; SPX.0231; SPX.0232; SPX.0233; SPX.0234; SPX. 0236; SPX.0237; SPX.0238; SPX.0239; SPX.0241; SPX.0242; SPX.0243; SPX.0244; SPX.0246; SPX.0247; SPX.0248; SPX.0249; SPX.0250; SPX.0251; SPX.0252; SPX.0253; SPX.0254; SPX.0255; SPX.0256; SPX.0257; SPX.0258; SPX.0259;9

and to portions of SPX.0169. Dkt. No. 178

- 1, at 3

– 19; see also Dkt. No. 178

- 1, at 7 (objecting to SPX.0169). The Government objects to these exhibits on the grounds of : relevance; cumulative ness ; hearsay; waiver; and/or objection sustain ed at trial. The court addresses each of these categories. The Government objects to 202 of these exhibits on relevance grounds. Dkt. No. 178

- 1, at 3

– 19. The se exhibits include reports and studies , either conducted by the Army Corps or commissioned by the Army Corps, and Army Corps’ design memoranda, emails, Flood Safety Program documents, and other similar exhibit s . Dkt. No. 178

- 1, at 3

– 19. In addition, the exhibits discuss the Mississippi River

- Gulf Outlet channel (“MR

- GO”), the e cosystem of Southeast Louisiana, flood protection systems, and the effects of the flooding events. Dkt. No. 178

- 1, at 3

– 19. Therefore, the court rules that these exhibits are relevant, because they “ha[ve] a tendency to make a fact more or less probable” and “the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible” )

. The Government objects to 172 of these exhibits on the grounds that they are cumulative. Dkt . No. 178

- 1, at 3

– 19. Although Federal Rule of Evidence 403 grants the court discretion to exclude evidence for efficiency , it does not require the exclusion of otherwise relevant evidence

. 11 Therefore, t he court rules that the “probative value” of these exhibits is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403. The Government objects to thirty

- nine of these exhibits on hearsay grounds. Dkt. No. 178

- 1, at 5

– 7, 16

– 17. Twenty

- nine of t hese objections relate to Army Corps’ emails that discuss MR

GO, the Southeast Louisiana ecosystem, Hurricane Katrina related litigation, and other relevant topics . Dkt. No. 178

- 1, at 16

– 17. T he court rules that these emails are admissible under the opposin g party’s statement exclusion and under the business records exception to the hearsay

SPX.0260; SPX.0263; SPX.0266; SPX.0267; SPX.0268; SPX.0269; SPX.0272; SPX.0276; SPX.0277; SPX.0278; SPX.0280; SPX.0281; SPX.0282; SPX.0283; SPX.0284; SPX.0285; SPX.0286; SPX.0287; SPX.0289; SPX.0290; SPX.0291; SPX.0292; SPX.0293; SPX.0294; SPX.0295; SPX.0296; SPX.0297; SPX.0298; SPX.0303; SPX.03 05; SPX.0308; SPX.0309; SPX.0310; SPX.0312; SPX.0315; SPX.0316; SPX.0319; SPX.0324; SPX.0326; SPX.0329; SPX.0331; SPX.0333; SPX.0334; SPX.0335; SPX.0337; SPX.0338; SPX.0342; SPX.0344; SPX.0346; SPX.0347; SPX.0349; SPX.0351; SPX.0352; SPX.0353; SPX.0354; SP X.0355; SPX.0356; SPX.0357; SPX.0359; SPX.0360; SPX.0361; SPX.0362; SPX.0363; SPX.0364; SPX.0365; SPX.0366; SPX.0367; SPX.0368; SPX.0372; SPX.0373; SPX.0374; SPX.0383; SPX.0384; SPX.0392; SPX.0393; SPX.0394; SPX.0395; SPX.0396; SPX.0397; SPX.0398; SPX.0399 ; SPX.0400; SPX.0401; SPX.0402; SPX.0403; SPX.0405; SPX.0407; SPX.0408. Of these 212 exhibits, thirty

- two were admitted in their entirety in Robinson and four were admitted, in part, in Robinson . Dkt. No. 178

- 1, at 3

– 8, 10

– 14, 18. SPX.0169 was admitted in its entirety in Robinson . Dkt. No. 178

- 1, at 7.

11 Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403 ( emphasis added).10

prohibition. See F ED . R. E VID . 801 (d) (opposing party’s statement exclusion) 12 ; F ED . R. E VID . 803 (6) ( business records exception )

. The other ten hearsay objections relate to the Army Corps’ reports and studies. Dkt. No. 178

- 1, at 5

– 7. T he court rules that these studies are admissible under the public records exception, th e business records exception, and the opposing party’s stateme nt exclusion to the hearsay prohibition. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception); F ED . R. E VID . 801 (d) (opposing party’s statement exclusion)

. The Government objects to SPX.0134 , because its objection to this exhibit was sustained at trial. Dkt. No. 178

- 1, at 5 ; 12/13/11 TR at 524

– 25 (Kemp Redirect). The court rules that SPX.0134 is not admissible. Finally, the Government renewed its objections to SPX.0226, SPX.0255, and SPX.0256 that were raised at trial. Dkt. No. 178

- 1, at 11, 13 ; see also 12/13/11 TR at 509

– 11 (Kemp Redirect) (objecting on the grounds that the documents were not discussed during cross

examination). T he court denied the Government’s objection. 12/13/11 TR at 510, 513 (s tatement by the court that the scope of Plaintiffs’ questions was “fair” and that “we’ve touched upon this in the cross

- examination”)

. Therefore, the court rules that SPX.0226, SPX.0255, and SPX.0256 are admissible. For these reasons, the court rules t hat the Army Corps exhibits are admitted

. See Court Exhibit A § II.A.1.b

. 13

c. Federal Emergency Management Agency Documents And Related Materials. Plaintiffs proffer ed fifty

- nine Federal Emergency Management Agency (“FEMA”) documents and related materials and one United States Geological Survey (“USGS”) document ,

12 Federal Rule of Evidence 801(d) provides: A statement .

. . is not hearsay .

. . . (2) [if it] is offered against an opposing party and: (A) was made by the party in an individual or representative capaci ty; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationsh ip and while it existed ; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy. F ED . R. E VID . 801 (d) (emphasis added).

13 The court also rules that SPX.0169 is admitted, as relevant evidence and as evidence admitted in Robinson

. See F ED . R. E VID . 402; see also Dkt. No. 178

- 1, at 7

.11

to which the Government objects on the grounds of relevance and cumulative ness . Dkt. No. 178

- 1, at 19

– 22. 14 The fifty

- nine FEMA and one USGS exhibits to which the Government objects include flood response and insurance information, maps of the affected area, and wetlands valuation information. Dkt. No. 178

- 1, at 19

– 22. Therefore, the court rules that these exhibits are relevant, because they “ha[ve] a tendency to make a fact more or less probable , ” and “the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible”)

. T he court also rules that the “probative value” of these exhibits is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403. For these reasons, the court rules that the FEMA and USGS exhibits are a dmitted. See Court Exhibit A § II.A.1.c

.

d. Robinson Expert Reports. Plaintiffs proffer ed seventeen expert reports from Robinson . Dkt. No. 178

- 1, at 22

– 25. The Government objects to fifteen of these exhibits, all on hearsay grounds , and to two under RCFC 26. Dkt. No. 178

- 1, at 22

– 25. 15 The court will address these exhibits in Section II.A.2 be low.

e. Plaintiffs’ Expert Declarations, R eports, A nd Materials Cited. Plaintiffs proffer ed thirty

- four expert declarations, reports , and materials cited. Dkt. No. 178

- 1, at 26

– 29. The Government objects to thirty

- two 16 of these exhibits on the following

14 The fifty

- nine FEMA documents and related materials are: SPX.0409; SPX.0410; SPX.0411; SPX.0412; SPX.0413; SPX.0414; SPX.0415; SPX.0416; SPX.0418; SPX.0419; SPX.0420; SPX.0421; SPX.0422; SPX.0423; SPX.0424; SPX.0425; SPX.0426; SPX.0427; SPX.0428; SPX.0429; SPX.0430; SPX.0431; SPX.0432; SPX.0433; SPX.0434; SPX.0435; SPX.0436; SPX.0437; SPX.0438; SPX.0439; SPX.0440; SPX.0441; SPX.0442; SPX.0443; SPX.0444; SPX.0445; SPX.0446; SPX.0447; SPX.04 48; SPX.0449; SPX.0450; SPX.0451; SPX.0452; SPX.0453; SPX.0454; SPX.0455; SPX.0456; SPX.0457; SPX.0458; SPX.0459; SPX.0460; SPX.0461; SPX.0462; SPX.0463; SPX.0464; SPX.0465; SPX.0466; SPX.0467; SPX.0469. The USGS document is SPX.0470. SPX.0415 was admitt ed in its entirety in Robinson

.

15 The fifteen Robinson expert reports are: SPX.0471; SPX.0472; SPX.0473; SPX.0474; SPX.0475; SPX.0476; SPX.0478; SPX.0480; SPX.0482; SPX.0483; SPX.0484; SPX.0485; SPX.0486; SPX.0488; SPX.0489. For SPX.0483 and SPX.0484, the Government objects on both hearsay and RCFC 26 grounds. Ten of the documents were admitted in their entirety in Robinson , and two were admitted, in part.

16 The thirty

- two expert declarations, reports, and materials cited are: SPX.0491; SPX.0494; SPX.0495 ; SPX.0496; SPX.0497; SPX.0499; SPX.0500; SPX.0502; SPX.0503; SPX.0504; SPX.0505; SPX.0506; SPX.0507; SPX.0508; SPX.0509; SPX.0510; SPX.0511; SPX.0512; SPX.0513; SPX.0515; SPX.0517; SPX.0518; SPX.0519; SPX.0520; SPX.0521;12

grounds: Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993); hearsay; and RCFC 26

. The Government objects to five of these exhibits under Daubert. In Daubert , the United States Supreme Court abolished the “gen eral acceptance” precondition to the admissibility of scientific evidence. See 509 U.S. at 597 (“To summarize: ‘General Acceptance’ is not a necessary precondition to the admissibility of sci entific evidence under the Federal Rules of Evidence, but the Rules of Evidence

— especially Rule 702

— do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand. Perti nent evidence based on scientifically valid principles will satisfy those demands.”) ; see also id. at 593

– 94 ( identifying four nonexclusive fact ors for the court to consider : (1) “whether it can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known or potential rate of error”; and (4) the general acceptance in the scientific community)

. Daubert and its progeny prompted a revision of Federal Rule of Evidence 702

. See F ED . R

. E VID . 702 A dvisory C ommittee notes (2000) (“Rule 702 has been amended in response to Daubert

. . . and to many cases applying Daubert [.]”); see also F ED . R. E VID . 702

. 17 These fiv e exhibits include: the August 16 , 2006 Sworn Declaration of Dr. G. Paul Kemp 18 ; the Augus t 12 , 2011 Expert Report of Dr. Kemp; a MR

- GO chronology prepa red by Dr. Kemp; the July 1, 201 1 Sworn Declaration of Dr. Joseph N. Suhayda 19 ; and the August 12 , 2011 Expert

SPX.0522; SPX.0523; SPX.0524; SPX. 0525; SPX.0526; SPX.0527; SPX.0528. Six of these exhibits were admitted as evidence in Robinson

.

17 Federal Rule of Evidence 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the f orm of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) th e testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. F ED . R. E VID . 702.

18 Dr. George Paul Kemp is a geologist and oceanographer, and is Vice President of the National Audubon Society and Director of the Louisiana Gulf Coast Initiative. He obtained his B.S. in Natural Resources from Cornell University, and his M.S. and Ph.D in Marine Sciences from Louisiana State University. See 12/6/11 Kemp Direct at 5

– 19.

19 Dr. Joseph N. Suhayda is a Coastal Hydrologist and Coastal Oceanographer with an advanced degree in Physical Oceanography. He obtained his B.S. in Physics from California State University, Northbridge, and a Ph.D in Physical Oceanography from the University of California, San Diego, Scripps Institution of Oceanography. See 12/6/11 Suhayda Direct at 4

– 6.13

Report of Dr. Suhayda. Dkt. No. 178

- 1, at 26. 20 Drs. Kemp and Suhay da have extensive educational qualifications and professional experience in relevant fields

. 12/12/11 TR at 188

– 200 (explaining Dr. Kemp’s educational and professional qualifications, experience in post

- Hurricane Katrina investigations, and his prior test imony in Robinson ); 12/13/11 TR at 657

– 66 (explaining Dr. Suhayda’s educational and professional qualifications, experience in post

- Hurricane Katrina investigations, and his prior testimony in other hurricane litigation). Therefore, the court rules that D rs. Kemp and Suhayda are qualified as expert witnesses under Daubert and that their testimony : “will help the trier of fact to understand the evidence ” ; “is ba sed on sufficient facts or data ” ; “is the product of reliable principles and methods ” ; and “the expert has reliably applied the principles and methods to the facts[.]” F ED . R. E VID . 702. The Government also objects to thirty

- two of these documents on hearsay grounds. Dkt. No. 178

- 1, at 26

– 29. T he six exhibits that are Drs. Suhayda’s and Kemp’s sworn declarations, expert reports, and an appendix are inadmissible hearsay. See F ED . R. E VID . 801(c) 21 ; F ED . R. E VID . 802

. 22 T he remaining twenty

- eight exhibits are reports on the hydrology and weather patterns of the New Orleans area that Plaintiffs’ experts were “made aware of or personally observed” and that “experts in the particular field would reasonably rely on .

. . in forming an opinion on the subject.” F ED . R. E VID . 703 ( stating that evidence meeting the aforementioned crite ria “need not be admissible for the opinion to be admitted” into expert testimony). And, the court rules that these twenty

- eight reports satisfy the public records and business records exceptions to the hearsay prohibition. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception)

. Because the court already ruled above that Drs. Suhayda’s and Kemp’s six expert reports, sworn declarations, and appendix are inadmissible hearsay, the court need not consider the Government’s RCFC 26 objections. For these reasons, the court rules that twenty

- six of the Plaintiffs’ expert declarations, reports, and materials cited exhibits to which the Government objects are admitted, but six of these exhibits are not. See Court Exhibit A § II.A.1.e; Court Exhibit B § II.A.1.e

.

20 On November 23, 2011, the Government filed separate Motions In Limi ne to exclude the testimony of Drs. Kemp and Suhayda that the court denied on December 2, 2011. At trial, the court informed the parties that it would rule on the admissibility of the testimony of Drs. Kemp and Suhayda when it issued a final opinion. 12/ 13/11 TR at 667.

21 Federal Rule of Evidence 801(c) provides, “ ‘ Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” F ED . R. E VID . 801(c).

22 Federal Rule of E vidence 802 provides, “Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court [of the United States].” F ED . R. E VID . 802.14 f. Plaintiffs’ Declarations And Depositions. Plaintiffs proffer ed fifty

- two depositions and declarations . T he Government objects to forty

- six 23 of these exhibits. Dkt. No. 178

- 1, at 29

– 34. The Governm ent objects to twelve of these exhibits on hearsay grounds and to SPX.0586 on grounds of relevance and cumulative ness . Dkt. No. 178

- 1, at 29

– 30, 32

– 33. In addition, the Government objects to thirty

- three exhibits as whole documents , but not to those portions previously admitted. Dkt. No. 178

- 1, at 29

– 34. As to SPX.0586, the court rules that it “has a tendency to make a fact more or less probable” and that “the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F E D . R. E VID . 402 ( stating that “relevant evidence is admissible”)

. And, the court rules that th e “probative value” of this exhibit is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403. Th erefore, SPX.0586 is admitted. As t o hearsay, the twelve exhibits are four sworn declarations, one technical report, four photograph exhibits, and three letters. Dkt. No. 178

- 1, at 29

– 30, 32

– 33. The four sworn declarations are inadmissible hearsay. See F ED . R. E VID . 801(c); F ED . R. E VID . 802

. In addition, because Plaintiffs did not properly authenticate the photographs in SPX.0580

– 83, these exhibits are inadmissible. See F ED . R. E VID . 901

. 24 But, SPX.0570 is a technical report prepared by the Army Corps that the court rules is admiss ible under the public records and business records exceptions to the hearsay prohibition. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception)

. SPX.0584, SPX.0588, and SPX.0590 are letters sent by government officials that also satisfy the public records and business records exceptions to the hearsay prohibition. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception)

. As to the thirty

- three exhibits to which the Government objects with exception to those portions designated and previously admitted, the Government does not present a “ specific ground” or a ground that is “apparent from the context

. ” F ED . R. E VID . 103(a)(1)(B); see also Dkt. No. 178

- 1, at 29

– 34. Therefore, the court rules that these exhibits are admissible in their entirety. For these reasons, the court rules that thirty

- eight of Plaintiffs’ declara tions and depositions exhibits to which the Government objects are admitted , but eight of these exhibits are not

. See Court Exhibit A § II.A.1.f; Court Exhibit B § II.A.1.f

.

23 The forty

- six exhibits are: SP X.0529; SPX.0530; SPX.0531; SPX.0533; SPX.0536; SPX.0537; SPX.0538; SPX.0539; SPX.0540; SPX.0542; SPX.0547; SPX.0548; SPX.0556; SPX.0557; SPX.0558; SPX.0560; SPX.0563; SPX.0564; SPX.0566; SPX.0568; SPX.0570; SPX.0571; SPX.0573; SPX.0574; SPX.0575; SPX.0577 ; SPX.0578; SPX.0579; SPX.0580; SPX.0581; SPX.0582; SPX.0583; SPX.0584; SPX.0586; SPX.0588; SPX.0590; SPX.0594; SPX.0597; SPX.0598; SPX.0603; SPX.0609; SPX.0613; SPX.0615; SPX.0617; SPX.0618; SPX.0624. Five of these exhibits were admitted in their entiret y in Robinson

.

24 Federal Rule of Evidence 901 provides, “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. ” F ED . R. E VID . 901.15 g. Congressional Documents. Plaintiffs proffer ed ten congressional documents, of which the Government objects to nine 25 on the grounds of relevance and that they are cumulative . Dkt. No. 178

- 1, at 37

– 38. As to relevance, t he nine congressional document exhibits to which the Government objects include hearing statements and reports on Hurricane Katrina and the Army Corps ’ response . Dkt. No. 178

- 1, at 37

– 38. The court rules that these exhibits are relevant, because they “ha[ve] a tendency to make a fact more or less probable” and “the fact is of conseq uence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible”)

. In addition, t he court rules that the “probative value” of these exhibits is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403. For these reasons, the court rules that the congressional document exhibits are admitted. See Court Exhibit A § II.A.1.g

.

h. St. Bernard Parish Studies. Plaintiffs proffer ed twenty

- one St. Bernard Parish studies, to five 26 of which the Government objects on hearsay grounds. Dkt. No. 178

- 1, at 38

– 39. Two exhibits were written by St. Ber nard Parish, and three exhibits were prepared by a private company on behalf of St. Bernard Parish. Compare SPX.0715 and SPX.0722 , with SPX.0719, SPX.0720, and SPX.0721

. The court rules that these exhibits f all within the public records and business records exceptions to the hearsay prohibition

. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) ( business records exception )

. For these reasons, the court rules that the St. Bernard Parish studies are admitted. See Court Exhibit A § II.A.1.h

. i. Additional Reports. Plaintiffs proffer ed twenty

- one additional reports , to nineteen 27 of which the Government objects

. Dkt. No. 178

- 1, at 39

– 42. The Government objects to seventeen exhibits on hearsay

25 The nine congressional exhibits are: SPX.0687; SPX.0688; SPX.0689; SPX.0690; SPX.0692; SPX.0693; SPX.0696; SPX.0697; SPX.0698. Four of these exhibits were admitted in their entirety in Robinson . Dkt. No. 178

- 1, at 37

– 38.

26 The five St. Bernard Parish studies are: SPX.0715; SPX.0719; SPX.0720; SPX.0721; SPX.0722.

27 The nineteen additional reports are: SPX.0726; SPX.0728; SPX.0732; SPX.0733; SPX.0734; SPX.0736; SPX.0737; SPX.0741; SPX.0743; SPX.0744; SPX.0745; SPX.0746; SPX.0747; SPX.0748; SPX.0749; SPX.0750; SPX.0755; SPX.0756; SPX.0757. Two of these exhibits were admitted in their entirety in Robinson , and one was admitted, in part.16

grounds, to SPX.0728 on hearsay and relevance grounds, and to SPX.0732 on relevance and cumulative ness grounds . Dkt. No 178

- 1, at 39

– 42. F ourteen of the seventeen exhibits to w hich the Government objects are : reports prepared by or with assistance from a state or federal government ; city or parish ord inances; a government employee report; or reports prepared by the National Research Council that is funded by the federal government. Dkt. No. 178

- 1, at 39

– 42. Therefore, the court rules that these exhibits f all within the public records and busine ss records exceptions to the hearsay prohibi tion

. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception)

. Two other exhibits, SPX.0749 and SPX.0750, are articles that analyze risk in hurricane prone areas that were coauthored by an academic and IT EP’s R isk and Reliability Team Leader

. SPX.0757 is an un identified map of St. Bernard Parish properties with no known author. Therefore, the court rules that these documents are inadmissible hearsay , because SPX.0749 and SPX.0750 are articles, and SPX.0757 lacks foundation

. See F ED . R. E VID . 801(c) ( hearsay definition ); F ED . R. E VID . 802 ( hearsay prohibition ). As to relevance, SPX.0728 is an October 13, 1969 letter from the General Superintendent of the New Orleans Sewage and Water Board that discusses the modeling of historical hurricane data, and SPX.0732 is an October 20, 2000 status report of the modification of the MR

- GO prepared for the Environmental Protection Agency. T he court rules that these exhibits are relevant, because they “ha[ve ] a tendency to make a fact more or less probable” and “the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible”)

. As to whether the SPX.0732 is cumulative, the court rules that the “probative value” of SPX.0732 is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evidence.” F ED . R. E VID . 403. For these reasons, the court rules that sixteen of these exhibits are admitted, but three exhibits are not. See Court Exhibit A § II.A.1.i; Court Exhibit B § II.A.1.i

.

j. Articles. Plaintiffs proffer ed thirteen newspaper articles to which the Government objects on hearsay grounds. Dkt. No. 178

- 1, at 42. 28 These n ewspaper articles are hearsay and are not admissible for the truth of the matter asserted. See F ED . R. E VID . 801(c); F ED . R. E VID . 802; see also Wathen v. United States , 208 Ct. Cl. 342, 355 (1975) (holding that newspaper articles were hearsay). For these reasons, the court rules that the newspaper articles are not admitted. See Court Exhibit B § II.A.1.j

.

28 The thirteen newspaper articles are: SPX.0758; SPX.0759; SPX.0760; SPX.0761; SPX.0762; SPX.076 3; SPX.0764; SPX.0765; SPX.0766; SPX.0767; SPX.0770; SPX.0771; SPX.0772.17 k. Mississippi River - Gulf Outlet Closure Committee Documents. Plaintiffs proffer ed twenty

- eight MR

- GO Closure Committee d ocuments to which the G overnment objects on hearsay grounds. Dkt. No. 178

- 1, at 42

– 44. 29 These exhibits primarily are meeting minutes from the Committee, as well as reports and maps. Dkt No. 178

- 1, at 42

– 44. The MR

- GO Closure Committee consists of a public policy committee an d technical advisory committee “to design and develop a cost effective program to p hase out the MRGO[.]” SPX.0773, at PDF 5. Therefore, the court rules that these exhibits f all within the public records and business records exceptions to the hearsay proh ibition

. See F ED . R. E VID . 803(8) ( public records exception ) ; F ED . R. E VID . 803 (6) (business records exception)

. For these reasons, the court rules that the MR

- GO Closure Committee documents are admitted. See Court Exhibit A § II.A.1.k

.

l. Property Records Of Representative Plaintiffs. Plaintiffs proffer ed 142 exhibits regarding the property records of representative Plaintiffs. Dkt. No. 178

- 1, at 44

– 62. The Government objects to three of these exhibits, one without specifying a ground and two as to the “portions of the document describing or related to properties not listed in the operative complaint.” Dkt. No. 178

- 1, at 45. 30 But, the Government does not present a “specific ground,” and the gr ound is not “apparent from the context.” F ED . R. E VID . 103(a)(1)(B); see also Dkt. No. 178

- 1, at 29

– 34. Therefore, the court rules that these exhibits are admissible in their entirety. For these reasons, the court rules that the exhibits regarding prop erty records of representative Plaintiffs are admitted. See Court Exhibit A § II.A.1.l.

m. Multimedia And Miscellaneous Documents. Plaintiffs proffer ed ninety

- two multimedia and miscellaneous documents . T he Government objects to eighty

- nine 31 on the following grounds: relevance; cumulative ness ; hearsay; lack of foundation; RCFC 26; and Daubert . Dkt. No. 178

- 1, at 62

– 68.

29 The twenty

- eight MR

- GO Closure Committee exhibits are: SPX.0773; SPX.0774; SPX.0777; SPX.0780; SPX.0783; SPX.0785; SPX.0788; SPX.0797; SPX.0807; SPX.0817; SPX.0822; SPX.0824; SPX.08 25; SPX.0826; SPX.0828; SPX.0830; SPX.0832; SPX.0845; SPX.0851; SPX.0852; SPX.0853; SPX.0854; SPX.0855; SPX.0857; SPX.0865; SPX.0867; SPX.0869; SPX.0880. Seventeen of these exhibits were admitted in their entirety in Robinson

.

30 The three exhibits are: S PX.0902; SPX.0906; SPX.0907.
31 The eighty

- nine exhibits are: SPX.01042; SPX.01054; SPX.01056; SPX.01057; SPX.01058; SPX.01059; SPX.01060; SPX.01062; SPX.01063; SPX.01066; SPX.01067; SPX.01068; SPX.01069; SPX.01070; SPX.01071; SPX.01072; SPX.01073; SPX.0107 4; SPX.01075; SPX.01077; SPX.01079; SPX.01082; SPX.01083; SPX.01084; SPX.01086; SPX.01087; SPX.01088; SPX.01089; SPX.01090; SPX.01091; SPX.01092; SPX.01093; SPX.01095; SPX.01096; SPX.01097; SPX.01098; SPX.01099; SPX.01100; SPX.01101;18

The Government objects to eighty

- one of these exhibits on relevance grounds. Dkt. No. 178

- 1, at 62

– 68. The eighty

- one exhi bits to which the Government objects include a variety of documents discussing the MR

- GO, flooding in Southeast Louisiana, and the Army Corps’ response to Hurricanes Katrina and Rita. Dkt. No. 178

- 1, at 62

– 68. Therefore, the court rules that these exhibi ts are relevant, because they “ha[ve] a tendency to make a fact more or less probable , ” and “the fact is of consequence in determining the action.” F ED . R. E VID . 401; see also F ED . R. E VID . 402 ( stating that “relevant evidence is admissible”)

. The Government objects to seventy

- eight of these exhibits as cumulative. Dkt. No. 178

- 1, at 62

– 68. The court rules that the “probative value” of these exhibits is not “substantially outweighed by [the] danger of .

. . needlessly presenting cumulative evi dence.” F ED . R. E VID . 403. The Government objects to six of these exhibits, pursuant to RCFC 26, but does not identify a particular subsection of RCFC 26. Dkt. No. 178

- 1, at 68. These exhibits are four Storm Atlas Maps demonstrating surge levels, an und ated model, and photographs from Hurricane Rita. Dkt. No. 178

- 1, at 68; see also 12/14/11 TR at 1051

– 53 . At trial, they were included in a witnesses ’ binder (12/14/11 TR at 1051

– 53 ), but the court has been unable to determine whether these exhibits were properly disclosed or otherwise complied with RCFC 26. Therefore, these exhibits are not admitted. The Government objects to fifty

- three of these exhibits on hearsay grounds. Dkt. No. 178

- 1, at 62

– 68. Six of these exhibits are inadmissible, pursuant to RCFC 26 , and need not be considered as to hearsay

. Five of these exhibits are newspaper articles that are hearsay. See Fed. R. Evid. 801(c) (hearsay definition) ; F ED . R. E VID . 802 (hearsay prohibition) ; see also Wathen , 208 Ct. Cl. at 355 (holding that newspaper articles and an investigative report are hearsay and not admissible). Three of these exhibits are government publications that fall under the public records exception to the hearsay prohibition. See F ED . R. E VID . 803(8) ( public records exception ). Thirty

nine of these exhibits are emails, memoranda, reports, and other similar documents that satisfy the business records exception to the hearsay prohibition. See F ED . R. E VID . 803 (6) (business records e xception). Therefore, forty

- two of these exhibits are admissible hearsay, but five are inadmissible

. The Government objects to SPX. 0 1067 and SPX. 0 1068 for lack of foundation. Dkt. No. 178

- 1, at 63. Neither of these exhibits was discussed at trial, and the court is unable to determine th e basis for admitting these documents. Therefore, SPX. 0 1067 and SPX. 0 1068 are not admitted.

SPX.01102; SPX.01103; SPX.01104; SPX.01106; SPX.01107; SPX.01109; SPX.01110; SPX.01112; SPX.01113; SPX.01114; SPX.01115; SPX.01116; SPX.01117; SPX.01119; SPX.01120; SPX.01121; SPX.01126; SPX.01127; SPX.01128; SPX.01130; SPX.01131; SPX.01132; SPX.01133; SPX.01134; SPX.01136; SPX .01139; SPX.01140; SPX.01141; SPX.01142; SPX.01143; SPX.01144; SPX.01145; SPX.01146; SPX.01148; SPX.01150; SPX.01151; SPX.01152; SPX.01153; SPX.01155; SPX.01157; SPX.01158; SPX.01159; SPX.01160; SPX.01161; SPX.01162; SPX.01163; SPX.01164; SPX.01165; SPX.01 166; SPX.01168. Three of these exhibits were admitted in their entirety in Robinson . Dkt. No. 178

- 1, at 64.19

The Government also objects SPX.01168, photographs from Hurricane Rita, based on Daubert . Dkt. No. 178

- 1, at 68. T he court has ruled that this exhibit is not admitted for lack of foundation . Therefore , a Daubert analysis is unnecessary. For these reasons, the court rules that seventy

- nine of the ninety

- two multimedia and miscellaneous documents exhibits are admissible. See Court Exhibit A § II.A.1.m ; Court Ex hibit B § II.A.1.m

. 2. Robinson Exhibits. 32 On December 5, 2011, the Government filed a Motion To Exclude Robinson Material Not Independently Admissible In This Action (“Gov’t Mot.”). The Government objects to the “blanket admission of evidence presented in Robinson ” on three grounds. Gov’t Mot. at 1. First, the Robinson record “does not address the proof elements Plaintiffs must establish in this case,” because that case “involved analysis of the flooding incident to a single event

— Hurricane Kat rina.” Gov’t Mot. at 2. It is impossible to “generalize possible flooding scenarios from one storm to another,” and “the physical features on the ground .

. . ar e significantly different today [

. ] ” Gov’t Mot. at 3. Second, the Robinson trial transcripts are inadmissible hearsay. Gov’t Mot. at 3

– 5 (citing F ED . R. E VID . 801 (c)(1)

– (2) (defining hearsay as a statement “the declarant does not make while testifying at the current trial or hearing .

. . offer[ed] in evidence to prove the truth of the matter asserted”); Anderson v. United States , 417 U.S. 211, 219

– 20 (1974) (holding that prior trial testimony is not admissible to prove the truth of the matter asserted); T rs. o f Univ. of Pa. v. Lexington Ins. Co. , 815 F.2d 890, 905 (3d Cir. 1987) (same); United States v. Arias , 575 F.2d 253, 254 n.1 (9th Cir. 1978) (same)). In addition, the Government “had neither the opportunity nor similar motive to examine any witness w ho testified in Robinson ,” so the Robinson testimony does not satisfy Rule 804(b) of the Federal Rules of Evidence. Gov’t Mot. at 5 (citing F ED . R. E VID . 804(b)( 1)(A)

– (B) (excepting from the hearsay rule testimony “given as a witness at trial, hearing, or lawful deposition, whether given during the current proceeding or a different one,” if the party against whom the testimony is now offered had “an opportunity and simi lar motive to develop [the testimony] by direct, cross

- , or redirect examination”)). Third, Plaintiffs failed to “designate[] any specific testimony from [ Robinson ] to offer as evidence in this trial” or to “make .

. . disclosures of any of the Robinson reports.” Gov’ t Mot. at 5

– 6 (citing RCFC App. A ¶ 15 (b) (“Any party intending to present substantive evidence by way of deposition testimony .

. . shall serve and file a separate motion for leave to file the transcript of such testimony.”); RCFC 26(a) (go verning the duty to disclose during discovery)). This contravenes the RCFC’s and Federal Rules of Evidence’s attempts to prevent such “last minute and undefined disclosure.” Gov’t Mot. at 7. In this case, Plaintiff

s seek to admit testimony and expert reports from Robinson

. The Government first argues that Robinson analyzed only Hurricane Katrina, whereas this case involves multiple flooding events. Gov’t Mot. at 2

– 3. But, complete identity of issues is not

32 For a list of Robinson exhibits, see Court Exhibit A § II.A.2.20

relevant to a hearsay analysis. See 8A C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 2150 ( 3d ed.) (“[S]ubstantial identity of issues, rather than precisely the same subject matter, is all that is required.”). Much of the Robinson evidence proffered by Plaintiffs in this case was testimony by Government employees or experts. As such, it is not hearsay

. See F ED . R. E VID . 801(d)(2) (C) (stating that statements “ offered against an opposing party ” and “ made by the party’s agent or employee on a matter within the scop e of that relationship and while it existed ” are not hearsay). Other Robinson evidence was given under “circumstantial guarantees of trustworthiness,” i.e. , at trial; is “offered as evidence of a material fact,” e.g . , the Army Corps constructed the MR

- GO ; “is more probative

. . . than any other evidence” reasonably obtainable; and “will best serve the

. . . interests of justice,” e.g. , judicial efficiency and a comprehensive factual record. See F ED . R. E VID . 807(a). As such, th is evidence is admissible under the residual exception to the hearsay rule. Moreover, on February 25, 2011, the court notified the parties that it planned to admit the Robinson record, but the Government did not object for over nine months. 2/25/11 TR at 10

– 11. Thus, the Government’s argument that the Robinson evidence constituted a last

- minute and undefined disclosure is inaccurate . The parties cited Robinson in their briefs and prepared for trial with the understanding that Robinson evidence would be admitted. Dkt. No. 144, at 42 (Gove rnment Pre

- Trial Brief); 11/1/10 TR at 13

– 14 (explaining that Plaintiffs would “need to redepose some people , ” if the Robinson materials were inadmissible). As such, the Government waived its argument that the Robinson record should not be admitted. See United States v. Ziegler Bolt & Parts Co. , 111 F.3d 878, 882 (Fed. Cir. 1997) (holding that the United States Court of Appeals for the Federal Circuit “places waiver within the discretion of the trial court, consistent with its broad duties in managing the conduct of cases pending before it”). Finally, the court has taken judicial notice of the Robinson record. Federal Rule of Evidence 201(b) provides that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it

. . . (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” F ED . R. E VID . 201(b). Even thou gh “[m]atters of record in other courts are usually denied notice,” 2 M C C ORMICK O N E VIDENCE § 330 (7th ed. 2013 ), the United States Court of Appeals for the Federal Circuit has taken judicial notice of proceedings before other courts and tribunals. See, e .g. , Old Reliable Wholesale, Inc. v. Cornell Corp. , 635 F.3d 539, 549 (Fed. Cir. 2011) (“[T]his court can take judicial notice of the fact that the [Patent and Trademark Office]

. . . issued a notice of intent to issue a reexamination certificate confirmin g the patentability of all claims of the ‘950 patent.”); Advanced Software Design Corp. v. Fed. Reserve Ban k , 583 F.3d 1371, 1379 n.3 (Fed. Cir. 2009) (taking judicial notice of bid protest proceedings at the Government Accountability Office but “stat[ing] no view on the merits”); Phonometrics, Inc. v. Hospitality Int’l, Inc. , 120 F. App’x 341, 344

– 45 (Fed. Cir. 2005) (holding that the district court did not err in taking judicial notice of “facts in another case,” because the court “merely recognized that the transcripts of prior court proceedings were sources ‘whose accuracy cannot reasonably be questioned’”). The Government has not argued that the Robinson evidence’s accuracy can reasonably be questioned. As such, t he court rules that the proffered evidence from Robinson is “no t subject to reasonable dispute ” and is subject to judicial notice. F ED . R. E VID . 201(b).21

For these reasons, the court rules that the Robinson exhibits are admissible. See Court Exhibit A § II.A.2

. B. Court Exhibit. 33 During trial, the court marked Dr. G. Paul Kemp’s testimony from Robinson as Court Exhibit 9. 12/12/11 TR at 203. Because the court rules that the Robinson exhibits are admissible, Court Exhibit 9 is admitted. See Court Exhibit A § II.B. III. THE PARTIES’ EXPERT WITN ESSES. The parties each proffered the testimony of two expert witnesses for the December 12, 2011 to December 15, 2011 liability trial. The court ruled above that Plaintiffs’ experts, Dr. Joseph N. Suhayda and Dr. G. Paul Kemp, were qu alified as experts. See Section II.A.1.e. The Government proffered Dr. Lou i s D. Britsch III 34 and Dr. Donald T. Resio 35 as experts. Both Drs. Britsch and Resio have extensive educational qualifications and professional experience in relevant fields. Therefore, the court rules that Drs. Britsch and Resio are qualified as expert witnesses and that their testimony: “will help the trier of fact to understand the ev idence”; “is based on sufficient facts or data”; “is the product of reliable principles and methods”; and “the expert has reliably applied the principles and methods to the facts[.]” F ED . R. E VID . 702. IV. CONCLUSION. The documents listed in Court Exhibit A a re admitted as evidence

. See Court Exhibit A

. The documents listed in Court Exhibit B are not admitted as evidence

. See Court Exhibit B

. T he entire record submitted in this case contains additi onal documents, and this Memorandum Opinion And Final Order On Evidentiary Issues does not withdraw these other documents from the record of this case. In addition to the documents identified above, the record of this case includes documents attached to multiple pleadings. By way of example, these documents inclu de those submitted in briefing related to the Government’s October 4, 2006 Motion T o Dismiss ( Dkt. Nos. 27

– 34); briefing related to the Government’s November 7, 200 8

33 The Government previously objected to the wholesale admission of Robinson trial evidence in this matter and objects to the use of Court Exhibit 9 in this case for the truth of the matter asserted.

34 Dr. Louis D. Britsch, III is a geologist who manages the Geology Unit of the New Orleans District of the United States Army Corps o f Engineers. He obtained his B.S. in Geology from Nicholls State University, his M.S. in Geology from Tulane University, and his Ph.D in Coastal Geology from the University of New Orleans. He has worked for the Army Corps for the past twenty

- seven years. See 12/8/11 Britsch Direct at 1.

35 Dr. Donald T. Resio is the Director, Taylor Engineering Research Institute, at the University of North Florida. He obtained an undergraduate, masters, and doctoral degrees from the University of Virginia. His doctorat e is in Environmental Science: Earth Sciences. See 12/8/11 Resio Direct at 2

– 4.22

Motion For Summary Judgment (Dkt. Nos. 67, 70, 74); briefing related to the the Government ’s June 3, 2011 Motion F o r Summary Judgment (Dkt. Nos. 106, 107, 113, 114 , 118, 119 ); briefing related to the Government’s October 8, 2011 Motion T o Dismis s The Claims O f Plaintiffs Tommos o “Tommy” G. Tommaseo And Gwendolyn And Henry Adams (Dkt. No s . 127, 148 , 153 ); briefing related to P laintiffs’ June 22, 2010 Motion For Class Certification (Dkt. No s . 91, 207); and briefing related to the Government’s September 26, 2013 Motion F or Partial Summary Judgment R egarding Federal Grant Offsets (Dkt. No s . 222, 235). The Government’s December 5, 2011 Motion To Exclude is now moot. IT IS SO ORDERED. s/ Susan G. Braden SUSAN G. BRADEN Judge