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1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

2
3
4 IN RE: UPSTREAM ADDICKS AND ) Master Docket No.
5 BARKER (TEXAS) FLOOD-CONTROL ) 17-9001L
6 RESERVOIRS. )
7 _________________________________)
8
9
10 Courtroom 11B
11 BOB CASEY UNITED STATES COURTHOUSE
12 515 Rusk Street
13 Houston, Texas 77002
14 Monday, May 13, 2019
15 9:00 a.m.
16 Trial Volume 6
17
18
19 BEFORE: THE HONORABLE CHARLES F. LETTOW
20
21
22
23
24
25 REPORTED BY: KRISTY L. CLARK, RPR
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1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAMS ADDICKS
3 AND BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS:
4 BURNS CHAREST, L.L.P., ESQ.
5 BY: DANIEL CHAREST, ESQ.
6 900 Jackson Street
7 Suite 500
8 Dallas, Texas 75202
9 (469) 444-5002
10 dcharest@burnscharest.com
11
12 IRVINE & CONNER, L.L.C.
13 BY: CHARLES W. IRVINE, ESQ.
14 4709 Austin Street
15 Houston, Texas 77004
16 (713) 533-1704
17 charles@irvineconner.com
18
19
20
21
22
23
24
25

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1 APPEARANCES (CONTINUED):
2 WILLIAMS, KHERKHER, HART, BOUNDAS
3 BY: EDWIN A. EASTERBY, ESQ.
4 8441 Gulf Freeway
5 Suite 600
6 Houston, Texas 77017
7 (713) 230-2200
8 aeasterby@williamskherkher.com
9
10 DUNBAR HARDER, P.L.L.C.
11 BY: LAWRENCE G. DUNBAR, ESQ., ESQ.
12 10590 West Office Drive
13 Suite 2000
14 Houston, Texas 77042
15 (713) 782-4646
16
17 VB ATTORNEYS
18 BY: VUK VUJASINOVIC, ESQ.
19 6363 Woodway Drive
20 Suite 400
21 Houston, Texas 77057
22 (713) 224-7800
23 vuk@cbattorneys.com
24
25

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1 APPEARANCES (CONTINUED):
2 AHMAD ZAVITSANO, ET AL.
3 BY: KYRIL V. TALANOV, ESQ.
4 BY: HILARY S. GREENE, ESQ.
5 1221 McKinney Street
6 Suite 2500
7 Houston, Texas 77010
8 (713) 655-1101
9 hgreene@azalaw.com
10
11 MCGEHEE, CHANG, BARNES, LANDGRAF
12 BY: JACK E. MCGEHEE, ESQ.
13 10370 Richmond Avenue
14 Suite 1300
15 Houston, Texas 77042
16 (713) 864-4000
17 jmcgehee@lawtx.com
18
19 SULLINS, JOHNSTON, ROHRBACH & MAGERS
20 BY: MICHAEL J. DULANEY, ESQ.
21 2200 Phoenix Tower
22 3200 Southwest Freeway
23 Houston, Texas 77027
24 (713) 521-0221
25

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1 APPEARANCES (CONTINUED):
2 ON BEHALF OF THE DEFENDANT:
3 UNITED STATES DEPARTMENT OF JUSTICE
4 ENVIRONMENT & NATURAL RESOURCE SECTION
5 BY: WILLIAM SHAPIRO, ESQ.
6 501 I Street
7 Suite 9-700
8 Sacramento, California 95814
9 (916) 930-2207
10 william.shapiro@usdoj.gov
11
12 UNITED STATES DEPARTMENT OF JUSTICE
13 ENVIRONMENT & NATURAL RESOURCE SECTION
14 BY: KRISTINE S. TARDIFF, ESQ.
15 53 Pleasant Street
16 Fourth Floor
17 Concord, New Hampshire 03301
18 Kristine.tardiff@usdoj.gov
19
20
21
22
23
24
25

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1 APPEARANCES (CONTINUED):
2 UNITED STATES DEPARTMENT OF JUSTICE
3 ENVIRONMENT & NATURAL RESOURCE SECTION
4 BY: LAURA DUNCAN, ESQ.
5 601 D Street, NW
6 Third Floor
7 Post Office Box 7611
8 Washington, DC 20044
9 (203) 305-0466
10 laura.duncan@usdoj.gov
11
12 UNITED STATES ARMY CORPS OF ENGINEERS
13 GALVESTON DISTRICT, OFFICE OF COUNSEL
14 BY: JAMES E. PURCELL, ESQ.
15 2000 Fort Point Road
16 Suite 369
17 Galveston, Texas 77550-1229
18 (409) 766-3822
19 james.e.purcell@usace.army.mil
20
21
22 * * * * * * *
23
24
25

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1 I N D E X
2 Witness: Direct: Cross: Redirect: Recross:
3 Long 1444 1494 1571
4 Stewart 1581 1611 1617
5 Wind 1620 1642 1644
6 Giron 1646 1684 1696
7 Banker 1698 1720
8 Sidhu 1733 1745 1749
9 Burnham 1750
10
11 E X H I B I T S
12 Number: Marked: Admitted:
13 Joint:
14 41 1621
15 72 1735
16 76 1657
17 78 1687
18 79 1689
19 82 1701
20 104 1726
21 119 1759
22 120 1757
23 129 1744
24 248 1692
25 252 1736

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1 E X H I B I T S (Continued)
2 Number: Marked: Admitted:
3 Plaintiffs’:
4 1 1649
5 104-10 1489
6 104-11 1489
7 104-13 1489
8 104-14 1489
9 454 1752
10 461 1585
11 660 1443
12 1597 1479
13 1735 1452
14 1736 1451
15 1747 1475
16 1812 1455
17 2036-10 1674
18 2036-14 1702
19 2036-15 1703
20 2036-29 1639
21 2036-30 1639
22 2176 1468
23 2188 1587
24
25

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1 E X H I B I T S (Continued)
2 Number: Marked: Admitted:
3 Defendant’s:
4 196 1542
5 198 1548
6 206 1484
7 238 1559
8 254 1722
9 304 1564
10 826 1721
11 830 1685
12 839 1613
13 840 1612
14 933 1513
15
16 Stewart:
17 4 1584
18 5 1583
19 7 1598
20 9 1596
21 25 1590
22 26 1592
23 27 1595
24 29 1601
25 30 1603

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1 E X H I B I T S (Continued)
2 Number: Marked: Admitted:
3 Stewart:
4 32 1607
5
6 Wind:
7 21-3903 1632
8 21-3904 1638
9 21-3908 1640
10
11 Giron:
12 4 1652
13 6 1659
14 7 1661
15 26 1677
16 40 1667
17 81 1673
18 82 1673
19 83 1673
20
21 Banker:
22 18 1708
23 24A 1713
24 24B 1714
25 24C 1715

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1 E X H I B I T S (Continued)
2 Number: Marked: Admitted:
3 Banker:
4 24D 1715
5 24E 1716
6 24F 1716
7
8 Sidhu:
9 28 1741
10 51 1744
11 52 1742
12 53 1742
13
14 Burnham:
15 9 1771
16 19 1770
17 20 1782
18 54A 1773
19 54B-O 1787
20
21
22
23
24
25

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1 P R O C E E D I N G S
2 * * * * * * *
3 (Proceedings called to order, 9:00 a.m.)
4 THE CLERK: All rise. The Court of Federal
5 Claims is now in session, the Honorable Charles F.
6 Lettow presiding.
7 THE COURT: Please be seated. Good morning.
8 IN UNISON: Good morning, Your Honor.
9 THE COURT: Welcome back. Our reporter for
10 this week will be Kristy Clark, and she has promised to
11 keep up and to make sure that she hears everything that
12 the counsel and witnesses say. So we'll honor that
13 responsibility on her part by paying attention to her
14 when she raises that point.
15 Mr. Charest, you have something?
16 MR. CHAREST: No, Your Honor.
17 THE COURT: I have something. I had
18 forgotten to deal with the Bell expert report, PX660.
19 There was a motion to admit that report, and I had not
20 acted on that motion by the time I excused Mr. Bell.
21 May I admit that report?
22 MR. CHAREST: Without objection for the
23 plaintiffs.
24 MS. TARDIFF: Your Honor, just subject to the
25 objections that Mr. Dain made during.

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1 THE COURT: I understand that. That


2 objection stands, but the objection is overruled, and
3 the Bell expert report PX660 is admitted.
4 (Whereupon, Plaintiffs' Exhibit PX660
5 was admitted into evidence.)
6 MR. CHAREST: Thank you, Your Honor.
7 THE COURT: Where do we go from here,
8 Mr. Charest?
9 MR. CHAREST: The plaintiffs call Richard
10 Long, sir.
11 THE COURT: Richard Long? Thank you.
12 Mr. Long, if you would approach the bench,
13 that -- that would be quite satisfactory. Raise your
14 right hand to be sworn as a witness.
15 Thereupon--
16 RICHARD LONG,
17 was called as a witness, and having been first duly
18 sworn, was examined and testified as follows:
19 THE WITNESS: I do.
20 THE COURT: Thank you. Please be seated in
21 the witness stand.
22 Once you're there, if you'd please say your
23 full name, that would be appreciated.
24 THE WITNESS: Richard Long.
25 THE COURT: Thank you.

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1 Mr. Charest, you may proceed.


2 MR. CHAREST: Thank you, sir.
3 DIRECT EXAMINATION
4 BY MR. CHAREST:
5 Q. Mr. Long, tell the Court your job currently.
6 A. I'm the natural resource management
7 specialist for the U.S. Army Corp of Engineers.
8 Q. Did you hold that job under Harvey, sir?
9 A. Yes, I did.
10 Q. Are you a member of the Addicks-Barker
11 Emergency Coordination Team, called ABECT?
12 A. Yes, I am.
13 Q. How long have you been a member of ABECT,
14 sir?
15 A. For numerous years.
16 Q. More than ten years?
17 A. About ten years, sir.
18 Q. Did ABECT exist before you were a member?
19 A. I don't believe so.
20 Q. So you've been a member since ABECT existed?
21 A. Yes, sir.
22 Q. Okay. Did you participate in any multiagency
23 tabletop exercise in 2009 in connection with ABECT?
24 A. Yes, I did.
25 Q. All right. We'll talk about that later.

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1 Thank you.
2 Is it true to say that the Corps is a
3 controlling federal agency of the Addicks and Barker
4 dams?
5 A. Could you restate the question, please.
6 Q. Is it true to say that the Corps is the
7 controlling federal agency over the Addicks and Barker
8 dams?
9 A. The Corps of Engineers is the operator of the
10 Addicks and Barker dams.
11 Q. And the federal government, through the
12 Department of Army, has complete control over the
13 operations of the Addicks and Barker dams; correct?
14 A. They operate the dams. Yes, they do.
15 Q. And without regard to any other local
16 authorities, it's the federal government that operates
17 the dams; correct?
18 A. The Corps of Engineers is the primary
19 operators of Addicks and Barker dams.
20 Q. And not beholden to any local authorities;
21 correct, sir?
22 A. That's correct, sir.
23 Q. During Harvey, the Addicks and Barker dams
24 performed as expected; correct?
25 A. Yes, they did.

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1 Q. And, after Harvey, you were proud of how the


2 Addicks and Barker dams performed?
3 A. I was -- I was happy with the way the Corps
4 of Engineers operated during Hurricane Harvey.
5 Q. That's not my question, sir.
6 You were proud of how the Addicks and Barker
7 dams performed; correct?
8 A. Addicks and Barker dams performed as they
9 were intended to.
10 Q. Okay. During Harvey, the government closed
11 the gate at the Addicks and Barker dams because closing
12 the gates on the Addicks and Barker dams is what the
13 water control manual called for under those conditions;
14 correct?
15 A. Yes.
16 Q. And in your 41 years at the Corps, you're not
17 aware of any time when the water control manual has
18 been disregarded; correct?
19 A. That's correct.
20 Q. And during Harvey, if the government had not
21 closed the gates at the Addicks and Barker dams, that
22 would have been contrary to the water control manual;
23 correct?
24 A. That's correct.
25 Q. Aside from the water control manual, the

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1 Corps has also an emergency action plan; correct?


2 A. That's correct.
3 Q. And at no point during Harvey did conditions
4 exist that would require the government to exercise the
5 emergency action plan; correct?
6 A. Not that I recall.
7 Q. And, to your knowledge, the government did
8 not declare an emergency under the emergency action
9 plan during Harvey; correct?
10 A. I don't recall.
11 Q. You don't recall whether it happened, or you
12 don't recall it happening?
13 A. I don't recall the term "an emergency being
14 declared" being used at any time.
15 Q. And you were literally in the front line of
16 this event; correct?
17 A. Could you define the "front line."
18 Q. You were very involved with the operational
19 decisions and information coming and going from the
20 Corps; correct, sir?
21 A. I was very involved with the operations
22 taking place at the time.
23 Q. Do you agree with this, sir, that at no time
24 did conditions exist that would require the Corps to
25 exercise the emergency operation plan?

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1 A. Without reviewing the document, I couldn't


2 say.
3 Q. You just don't remember anymore?
4 A. Could you restate your question, please.
5 Q. Well, you said without reviewing the
6 documents you couldn't say. My question to you is is
7 it a matter of you don't recall anymore or you just
8 didn't know at any time whether conditions existed that
9 would require the Corps to exercise the emergency
10 operation plan?
11 A. The documents are -- are lengthy, and I would
12 need to review them to be sure that we did not exercise
13 anything out of the emergency operation plan.
14 Q. Do you have any memory whatsoever of the
15 Corps having ever exercised anything under the
16 emergency operation plan, sir?
17 A. I do not recall having that occur.
18 Q. Okay. And, to your knowledge, during Harvey
19 the government did not depart from the water control
20 manual in favor of the emergency action plan; correct?
21 A. To my knowledge, they did not.
22 Q. During Harvey, everything the government did
23 with respect to the Addicks and Barker dams was covered
24 by the water control manual; correct?
25 A. I would have to review the -- the manual in

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1 detail to be assured that everything that occurred was


2 in line with the manual.
3 Q. Well, let me ask you the question again so we
4 get very clearly the exact same question.
5 Everything that the Army Corps did during the
6 Hurricane Harvey event was covered by the water control
7 manual; correct?
8 A. To my knowledge.
9 Q. Okay. At no point in time during Harvey were
10 either the Addicks or Barker dams in danger of failure;
11 correct?
12 A. That's correct.
13 Q. In addition to being aware of the operational
14 events surrounding Harvey, one of your jobs was to
15 disseminate information to the public and local
16 authorities during Harvey; correct?
17 A. That's correct.
18 Q. All right.
19 Please put up Exhibit 1735, Plaintiffs' 1735.
20 Just zoom in, if you would, now to the top paragraph.
21 1735 is an email in which the senator, Andrea
22 Murdock-McDaniel, says, "Richard Long provided me the
23 attached generic talking points, but I'm sure this
24 request will require much more detail and graphics."
25 Do you recall having --

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1 MR. LEVINE: Objection, Your Honor.


2 THE COURT: I'm sorry, Mr. Levine.
3 MR. LEVINE: Yes. Mr. Levine for the United
4 States. Objection, Your Honor. He's reading from the
5 document, but the document is not in evidence.
6 THE COURT: Sustained.
7 MR. CHAREST: Just trying to lay the
8 foundation, sir, but fair enough.
9 Q. (By Mr. Charest) Do you recall ever having
10 sent Ms. Murdock-McDaniel talking points on or about
11 August 27, 2017, sir?
12 A. I don't recall specifically doing that or not
13 doing that.
14 Q. Do you know who Ms. Murdock-McDaniel is, sir?
15 A. I do.
16 Q. Who is she?
17 A. She's the chief of the operations division
18 for the southwestern division office of Corps of
19 Engineers.
20 MR. CHAREST: Let's go look at 1736, please,
21 Matt.
22 Q. (By Mr. Charest) Is this you on the text?
23 Do you recall this set of talking points, please, sir?
24 Just the whole group. Have you seen that before, the
25 talking points?

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1 A. I've saw numerous talking points during


2 Hurricane Harvey. I can't say specifically I saw those
3 or did not see those.
4 Q. Do you deny these are the talking points that
5 you provided to Ms. Murdock-McDaniel, sir?
6 A. No, I do not deny.
7 Q. And you're generally familiar with the
8 talking points that were issued out of the Corps for
9 use with the public?
10 A. Yes.
11 MR. CHAREST: Your Honor, I'd offer
12 Plaintiffs' 1736 into evidence.
13 MR. LEVINE: Objection, Your Honor. Lack of
14 foundation.
15 THE COURT: Overruled. Admitted.
16 (Whereupon, Plaintiff's Exhibit 1736 was
17 admitted into evidence.).
18 THE COURT: PX1736 is admitted. PX1735 has
19 not been.
20 MR. CHAREST: I would offer 1735, Your Honor,
21 as well.
22 THE COURT: Could I see it on the screen
23 again, please.
24 MR. CHAREST: Yes, sir.
25 The burden of this email is just that it says

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1 Richard Long is the one that sent these talking points.


2 THE COURT: Say again.
3 MR. CHAREST: The point of this document is
4 just to say that Mr. Long is the one that sent the
5 talking points.
6 THE COURT: Mr. Levine.
7 MR. LEVINE: Objection, Your Honor. Lack of
8 foundation.
9 THE COURT: Well, it appears that Mr. Long
10 has received this and is familiar generally with
11 knowing the role of Ms. Murdock McDaniel, but also the
12 talking points admitted.
13 (Whereupon, Plaintiffs' Exhibit 1735 was
14 admitted into evidence.)
15 MR. CHAREST: Go back to the talking points,
16 please, Matt, on 1736. The first one, if you would,
17 please.
18 Q. (By Mr. Charest) This first talking point
19 says "A+B are performing as intended, which is to
20 reduce flood levels along BB and to protect the city of
21 Houston."
22 Did I read that correctly, sir?
23 A. Could you restate the question, please.
24 Q. Did I read that correctly?
25 A. Yes, you did.

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1 Q. All right. "A+B" is Addicks and Barker dams;


2 correct?
3 A. Yes, it is.
4 Q. And "the performing as intended" is what the
5 Corps is telling the public; correct?
6 A. Yes.
7 Q. And the intention behind the dams that is
8 being performed is to reduce flood levels along Buffalo
9 Bayou; correct?
10 A. Yes.
11 Q. And it says "to protect the city of Houston."
12 What that means, though, is to protect downstream areas
13 of the city of Houston; correct?
14 A. That's correct.
15 Q. Because doesn't protect the upstream areas of
16 the city of Houston, do the dams?
17 MR. LEVINE: Objection, Your Honor.
18 Argumentative.
19 THE COURT: Overruled.
20 THE WITNESS: Could you restate the question.
21 Q. (By Mr. Charest) The dams do not provide
22 flood control protection upstream of the dams, do they,
23 sir?
24 A. That's correct.
25 Q. And the way the dams protect Buffalo Bayou

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1 and the city of Houston is by impounding runoff water


2 and storing it, if necessary, on private property
3 upstream of the dams; correct?
4 A. The -- could you restate the question,
5 please.
6 Q. Not sure I can say it more clearly, but I'll
7 try.
8 A. Just restate it.
9 Q. Yeah. The manner in which the dams operate
10 to achieve the intended result we're looking at here is
11 to impound runoff water and store it, as needed, on
12 private property; correct?
13 A. The way that we protect Houston is to impound
14 water behind Addicks and Barker dams and store that
15 water.
16 Q. And the storage area includes not only
17 government lands but also private property by design
18 and intent; correct?
19 A. That's correct.
20 Q. Okay.
21 Show you 1812, please, Matt.
22 Were you involved in the development of Q and
23 A's, questions and answers, for people that were
24 calling the Corps, sir?
25 A. At different times during the event, I was.

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1 Q. And even after the event, you were involved


2 in it as well too, right?
3 A. Yes, I was.
4 Q. All right. And do you see this particular
5 set of questions and answers that are up on the screen
6 here? Do you recall seeing these specifically?
7 A. Specifically, no. I saw a lot of different
8 ones that I worked on and came across my desk, but
9 specifically that one versus another one, no.
10 Q. Okay. Do you recall having the
11 opportunity --
12 THE COURT: Let the court note that we're
13 looking at PX1812 on the monitor.
14 MR. CHAREST: Yes, sir. Thank you.
15 Q. (By Mr. Charest) And do you recall having an
16 opportunity to comment on questions and answers that
17 were in draft form for issuance to Corps personnel in
18 dealing with the public, sir?
19 A. Yes.
20 MR. CHAREST: Okay. Your Honor, I would
21 offer Plaintiffs' 1812 into evidence.
22 MR. LEVINE: No objection, Your Honor.
23 THE COURT: Admitted.
24 (Whereupon, Plaintiffs' Exhibit 1812 was
25 admitted into evidence.)

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1 MR. CHAREST: Thank you.


2 Q. (By Mr. Charest) So looking at the question
3 and answers, set No. 5, here the Corps has taken a spin
4 on the intent; and rather than just saying it's
5 intended as performed by protecting downtown, the Corps
6 starts to say we don't, quote, intend to flood anyone.
7 Do you see that, sir?
8 A. Yes, I do.
9 Q. And then it goes on it explain "that the
10 Corps operates its project in a manner deliberately and
11 carefully designed to preserve the structure and
12 protect life and property."
13 Did I read that correctly?
14 A. Yes, you did.
15 Q. All right. So the Corps deliberately and
16 carefully intends to preserve the structure, correct,
17 of the dams?
18 A. That's what it states.
19 Q. Well, that's a true statement; correct?
20 A. That's what it states.
21 Q. But is that statement true?
22 A. Yes.
23 Q. All right. And to preserve the structure,
24 part of the issue is issuing releases under certain
25 conditions in order to reduce the total amount of water

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1 held behind the dams; correct? In surge conditions,


2 sir?
3 A. This is taken out of context. So I don't
4 quite follow your question.
5 Q. Is what I said true or not, that part of the
6 preserving the structures of the dams is open the gates
7 in order to allow water out of the pool in order to
8 minimize the amount of water that the dams hold back?
9 "Which would reduce," I guess, is a better word.
10 A. I'm going to ask you to state your question
11 one more time, please.
12 Q. Sure. Is one of the steps that the Corps
13 deliberately and carefully takes to preserve the
14 structure of the dams to open the gates under certain
15 conditions in order to reduce the pool levels for the
16 purpose of preserving the structure and the integrity
17 of the dams?
18 A. The Corps always operates their projects in a
19 way that would ensure the integrity and protect --
20 protect and preserve the structures when necessary.
21 Q. Okay. And the point of preserving the
22 structures is not to help upstream folks; it's to help
23 downstream folks. Correct?
24 A. The purpose of preserving the structure is to
25 make sure it stays intact so that it can do its job in

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1 the current event and future events.


2 Q. Okay. Because, if the structure fails, who
3 floods? Upstream or downstream?
4 A. If the structure fails, downstream would
5 flood.
6 Q. Thank you.
7 And then the deliberate and careful efforts
8 to protect life and property, that life and property
9 that's being protected is downstream life and property;
10 correct, sir?
11 A. The Corps deliberately operates their
12 projects in accordance with guidelines and manuals to
13 protect life and property.
14 Q. And the focus of these dams is to protect
15 life and property downstream; correct, sir?
16 A. That's correct.
17 MR. CHAREST: Turn, if you would, please --
18 Matt, show us -- I'm sorry -- question and answer 4.
19 Q. (By Mr. Charest) Do you have this answer to
20 the talking point is -- the question being "Why wasn't
21 I told?" The end of the proposed answer is "The Corps
22 prides itself in maintaining open and transparent
23 communication to the public."
24 Did I read that correctly?
25 A. Yes, you did.

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1 Q. There are two false statements in this


2 question-and-answer set; correct?
3 A. Say that again.
4 Q. There are two false statements inside this
5 very question-and-answer set; right?
6 A. I don't -- I don't understand your question.
7 Q. Okay. Well, let's look at them.
8 Show me No. 10, please, Matt.
9 In response to the question of "Why were
10 homes built inside the reservoir?" what is the first
11 sentence the Corps proposes to tell the public?
12 A. You would have to define "reservoir" to
13 better discuss that question.
14 Q. No, I don't, sir.
15 What is the words that the Corps proposed to
16 tell the public?
17 A. "There are no homes built inside the
18 reservoir."
19 Q. That is a false statement, isn't it, sir?
20 A. You would have to define "reservoir."
21 Q. Well, sir, are there homes built inside the
22 reservoir of the Addicks and Barker dams?
23 A. There are homes built upstream of government
24 property behind Addicks and Barker dams that are within
25 the storage area.

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1 Q. And the storage area is the reservoir,


2 correct, sir?
3 A. Again, we're looking at a definition for
4 "reservoir" here, whether it be government-owned or
5 privately owned.
6 Q. The privately owned part of the reservoir is
7 still part of the designed reservoir; correct, sir?
8 A. It is a still part of the designed storage
9 area.
10 Q. And, in fact, in Harvey, the storage area
11 that made up the reservoir, in fact, used private
12 property; right?
13 A. During the Harvey event, water was impounded
14 behind Addicks and Barker dams but did exceed the
15 government property limits.
16 Q. Is it true or false to say that there are no
17 homes built inside the reservoir of these dams, sir?
18 A. Again, we're looking at the definition of
19 "reservoir" being government-owned land versus
20 privately owned land.
21 Q. Right. So the -- so the message the Corps is
22 giving here is to tell people the government-owned land
23 is the extent of the reservoir.
24 That's the only way this statement is true;
25 right?

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1 A. That's what this would appear to indicate.


2 Q. But you know, having worked for the Corps for
3 some 40 years, that the reservoir extends far beyond
4 government-owned lands; right, sir?
5 A. The storage area behind Addicks and Barker
6 Dam does extend beyond government-owned land.
7 Q. Okay. So -- and in this Q&A, the Corps
8 didn't say, oh, by the way, we need to explain to them
9 what the reservoir means, and sometimes it's private
10 and sometimes it's not. They didn't have that
11 additional information that you're talking about, did
12 they, sir?
13 A. This speaks for itself.
14 Q. Yes, but I want an answer.
15 A. Ask your question again, please.
16 Q. The Corps did not go into a definition of
17 what reservoir was in this particular case as opposed
18 to how it uses it on a day-to-day basis; right, sir?
19 A. In this question and answer 10 here, it does
20 not define reservoir that the -- in this Q&A.
21 Q. Right. The second false statement is at
22 question and answer 11.
23 Show me, please, Matt.
24 And they're talking about effectively, you
25 know, the likelihood of this happening again. And I

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1 want you to focus on the middle sentence of the answer.


2 "The unprecedented flood event in this case
3 exceeded all the prior estimations."
4 You see that, sir?
5 A. Yes, I do.
6 Q. That's a false statement, isn't it, sir?
7 A. I -- I don't know the writer of this. I
8 don't know where he got that information, sir. I
9 don't --
10 Q. Listen to my question.
11 It is false to say that Harvey exceeded all
12 prior estimations of rainfall in the Addicks and Barker
13 watersheds; correct?
14 A. I do not know.
15 Q. You participated in the tabletop exercise in
16 2009?
17 A. Yes.
18 Q. And that tabletop exercise employed a
19 combination of the Claudette storm and the Herne storm
20 of 1899 for the model storm for that project -- for
21 that exercise; correct?
22 A. I do not recall the storms that were used
23 during that exercise.
24 Q. You know full well that the Corps has done
25 estimations of rainfall events over the Addicks and

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1 Barker watersheds that far exceed even the rain that


2 Harvey put on those watersheds; correct?
3 A. I do not recall those unless they were put in
4 front of me. I could review that.
5 Q. We'll review it in a minute, then.
6 So as long as we all agree at the end of this
7 session that there were prior estimations that exceeded
8 Harvey, this would be a false statement; right? 11A?
9 MR. LEVINE: Objection, Your Honor. Vague as
10 to the timing of these estimations.
11 MR. CHAREST: I didn't have any question
12 about timing.
13 THE COURT: Mr. Charest, just a moment. Let
14 me think about this.
15 It's not readily apparent which estimations
16 we're talking about. But, on the other hand, Mr. Long
17 has given context to his own personal knowledge.
18 So I'll allow the question. Thank you.
19 THE WITNESS: Could you restate the question.
20 MR. CHAREST: Can you read it back, please.
21 (Record read by the reporter.)
22 MR. CHAREST: Let me just go again.
23 Q. (By Mr. Charest) In 2017, the Corps is
24 proposing to tell the public that Harvey exceeded all
25 prior estimations. As long as I can show you some

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1 prior estimations that exceed the rainfall of Harvey,


2 you and I will agree that this is a false statement the
3 Corps was making; correct?
4 A. I would -- I -- without additional
5 information, I could not say one way or the other on
6 that.
7 Q. Okay. All right. On September 2nd, 2017, do
8 you recall speaking to a group of upstream residents on
9 the Barker Dam at Mason Road?
10 A. I did numerous engagements following Harvey.
11 One of them was on Barker Dam at Mason Road.
12 Q. And you spoke out in the open. I think
13 Mr. Vogler was there in attendance and several other
14 officials; correct?
15 A. That's correct.
16 Q. And do you know --
17 Can you put up, Matt, Plaintiffs'
18 Demonstrative No. 5, please.
19 I will try my pointer.
20 You see the red dot on the map, sir?
21 A. I do.
22 Q. All right. And you recognize that this area
23 generally is Barker Reservoir; correct?
24 A. I do.
25 Q. And the area I'm circling right here is

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1 Canyon Gate; right?


2 A. Yes, sir.
3 Q. And that spot right there is Mason Road and
4 the Barker Reservoir; correct?
5 A. That spot right there is Mason Road at Barker
6 Dam.
7 Q. Sorry. Thank you.
8 And that's the location from which you gave
9 the speech to residents of the upstream areas; correct?
10 A. That's the spot where I held a meeting with
11 Fort Bend County officials.
12 Q. Did you know -- did you see people there with
13 cameras? cell phones?
14 A. Ask again, please.
15 Q. Did you see people there with cell phones
16 that were recording your discussion?
17 A. Yes, I did.
18 Q. All right. And you know, in fact, that
19 the -- that speech was actually live-streamed over
20 Facebook? Did you know that?
21 A. I did not know that.
22 MR. CHAREST: Show me MICU 10, please, at 23,
23 Matt.
24 Zoom in to the picture at the top. Can you
25 zoom in to the picture as best you can.

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1 I think we'll see Mr. Long in a blue shirt in


2 the middle.
3 THE COURT: Mr. Charest, will you remind
4 which exhibit this is.
5 MR. CHAREST: This is MICU 10. It's in
6 evidence already, sir.
7 THE COURT: It is?
8 MR. CHAREST: Yes, sir.
9 Q (By Mr. Charest) It's hard to see a little
10 bit, but do you see that man in the blue shirt in the
11 middle, sir? Do you recall that's what you wore that
12 day?
13 A. Yes, sir.
14 Q. Okay. Great.
15 MR. CHAREST: Your Honor, we move to admit
16 Plaintiffs' 2176, which is a video of that speech.
17 It's obviously a native file, so we'll offer a
18 placeholder.
19 THE COURT: Is this on the thumb drive?
20 MR. CHAREST: It will be, sir. Yes, sir.
21 THE COURT: It will be?
22 MR. CHAREST: Yes, sir. We'll -- we plan to
23 play it as soon as it's admitted.
24 THE COURT: Do you propose to play it?
25 MR. CHAREST: Yes, sir. I want to make sure

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1 that he agrees to what he said.


2 THE COURT: I'm sorry?
3 MR. CHAREST: I wanted to make sure he agrees
4 with what he said live and then also explore some --
5 some of the things he said in more detail here.
6 THE COURT: Mr. Levine?
7 MR. LEVINE: Your Honor, we have to see the
8 video before it can be admitted into evidence because
9 lack of foundation.
10 THE COURT: Who prepared the video? Who made
11 it?
12 MR. CHAREST: We took it down off YouTube.
13 And we confirmed with Mr. Long that -- I can show you
14 the opening statement. It's the same picture we just
15 saw there.
16 But, Matt, can you put me -- just show me
17 the -- freeze the opening scene only without playing
18 the video.
19 THE COURT: I'm not sure I --
20 (Whereupon video was played.)
21 MR. CHAREST: Pause.
22 THE COURT: I'm not sure that answers my
23 question.
24 MR. CHAREST: I'm sorry. I missed the
25 question, then, sir.

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1 THE COURT: You took it off YouTube, but ...


2 MR. CHAREST: Well, again, I'll try to lay
3 some more foundation if that's necessary, Your Honor.
4 THE COURT: Yes.
5 Q. (By Mr. Charest) Is this you in the picture,
6 Mr. Long?
7 A. Yes, it is.
8 Q. Is this the event we were just discussing
9 about where you spoke to homeowners on the top of the
10 Barker Dam at Mason Road during Harvey?
11 A. It appears to be.
12 Q. All right.
13 MR. CHAREST: I'll offer it.
14 THE COURT: Mr. Levine.
15 MR. LEVINE: No objection, Your Honor.
16 MR. CHAREST: Thank you.
17 THE COURT: Okay. Admitted.
18 (Whereupon, Plaintiffs' Exhibit 2176 was
19 admitted into evidence.)
20 MR. CHAREST: Go ahead and play it, please.
21 Q (By Mr. Charest) I'm going to ask you some
22 questions about what you said. So just listen as best
23 you can, and we'll go back and talk about things you
24 said. Okay?
25 Go ahead. Thank you.

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1 (Whereupon video was played.)


2 MR. LEVINE: Your Honor?
3 THE COURT: Yes, Mr. Levine.
4 MR. LEVINE: That appeared to be clips from
5 the video that was streaming on Facebook Live but not
6 the entirety of the video that was streaming.
7 THE COURT: Yes. I --
8 MR. LEVINE: That was not identified when
9 plaintiffs moved that into evidence.
10 THE COURT: Well ...
11 MR. CHAREST: It's in evidence.
12 THE COURT: On the other hand, it's almost
13 the equivalent -- I say "almost" -- it's not quite the
14 equivalent of a videotaped deposition.
15 Do you have counterdesignations, Mr. Levine?
16 MR. LEVINE: Not that I know, Your Honor.
17 THE COURT: All right.
18 Mr. Charest, is the whole video available on
19 the thumb drive?
20 MR. CHAREST: The only thing we have is what
21 we -- what we got there was posted by somebody that
22 attended it. So I don't have anything other than those
23 portions, sir.
24 THE COURT: All right.
25 MR. CHAREST: And it is -- I mean, that's --

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1 it's exactly how the -- how the exhibit was on the list
2 and submitted to -- to the government months and months
3 ago. So it's not any kind of surprise. It was clips.
4 THE COURT: Mr. Levine, can you find the
5 original video?
6 MR. LEVINE: I don't know the answer to that,
7 Your Honor.
8 THE COURT: Why don't you see if you can.
9 MR. LEVINE: Yes, Your Honor. Thank you.
10 THE COURT: Thank you.
11 MR. CHAREST: The ruling is that it's been
12 admitted; correct?
13 THE COURT: Yes.
14 MR. CHAREST: Thank you.
15 Q (By Mr. Charest) When you talked about the
16 land behind the --
17 Show me Plaintiffs' Demonstrative 5, please.
18 When you talked about the land behind here,
19 you were standing right here at the corner -- sorry --
20 where Mason Road crosses into the reservoir, and you
21 were talking about the land behind here being Canyon
22 Gate; correct?
23 A. That was part of the property.
24 Q. What was the other part? What's this
25 neighborhood here, sir?

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1 A. I don't recall the name of that subdivision


2 right there.
3 Q. Okay. So the land behind here was all of
4 this upstream property; correct?
5 A. That's correct.
6 Q. And you know that Canyon Gate flooded
7 completely; right, sir?
8 A. I do not know that for a fact, that it
9 flooded completely.
10 Q. And you know that it's in the reservoir by
11 design; correct?
12 A. I know that Canyon Gate is located behind
13 Barker Dam and that there was extensive flooding in
14 that subdivision.
15 Q. If I asked you if it's in the reservoir, sir,
16 is Canyon Gate in the reservoir by design of Barker
17 Dam?
18 A. It's in the storage area behind Barker Dam.
19 Q. By design; correct?
20 A. By design.
21 Q. Okay. And there are homes in that area,
22 unlike what the press release said; correct?
23 A. Unlike what the press release said? I'm
24 sorry. I don't know what --
25 Q. The Q&A we looked at, where it says there's

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1 no homes in the reservoir. Do you recall?


2 A. Okay. Referring back to that press release?
3 Those homes are within the storage area of -- behind
4 Barker Dam. Again, we're looking at the definition
5 that was used at the time during those -- that Q&A
6 referring to reservoir.
7 Q. But --
8 A. And it is not clear what they're referring to
9 at that place.
10 Q. Well, you know full well it's clear because
11 the only part of the reservoir that doesn't have homes
12 in it is the government-owned land; right, sir?
13 A. That's correct. That's government-owned
14 land.
15 Q. So no certainty; it's just a misleading
16 statement. Right?
17 A. Could I see that question and answer again so
18 that I can read it.
19 Q. That's okay. I made my point.
20 The area -- when you say "this area is
21 designed to hold water," the area you're talking about
22 is the upstream neighborhoods; correct?
23 It is designed to hold water from your
24 statement to the people and the parties on the edge of
25 Barker Dam?

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1 A. The areas upstream of Barker Dam are designed


2 to hold water, yes.
3 Q. Okay. When you said "the opening of the
4 gates is good for you," helping the upstream properties
5 reduce flooding was not the reason for opening the
6 gates, was it, sir?
7 A. No, it was not.
8 Q. Then you say -- the last thing you said, "We
9 knew that if we got this event, there would be homes
10 with water in them."
11 It's true to say that the government has
12 always known that a storm of Harvey's magnitude or
13 greater could and probably would happen over the
14 Addicks and Barker watersheds; correct?
15 A. It was known that if a severe enough rain
16 event occurred, that water impounded behind Barker Dam
17 would exceed the government-owned property limits.
18 Q. And it was also known that a storm of
19 Harvey's magnitude could and probably would happen even
20 before Harvey; correct?
21 A. I don't recall seeing any documentation that
22 referred to the size of the storm of Harvey.
23 Q. Okay. We'll talk about that in a second,
24 then. Perfect.
25 All right. So just to be real clear, during

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1 Harvey, the government chose to release the water into


2 the downstream areas, but the purpose for that was not
3 to help upstream; correct?
4 MR. LEVINE: Objection, Your Honor. Asked
5 and answered.
6 THE COURT: On the other hand, this is just
7 the second time. So the Court will allow the question.
8 THE WITNESS: Can you ask the question again,
9 please.
10 MR. CHAREST: I call that a ball instead of a
11 strike.
12 Q (By Mr. Charest) During Harvey, the
13 government chose to release water into the downstream
14 areas by opening the gates, but the purpose of that was
15 not to avoid upstream flooding; correct?
16 A. That's correct.
17 Q. All right.
18 Talking about the government's awareness of
19 the likelihood of storm events. All right? I'm going
20 to refer you, please, to Exhibit Plaintiffs' 1747.
21 Did you write an email, sir, to a fellow by
22 the name of Jon Sweeten on September 5th, 2017?
23 A. Yes.
24 Q. Is this that email, sir?
25 A. (No response.)

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1 Q. Is this that email, sir?


2 A. Yes, it is.
3 Q. Yeah, sorry. Sometimes answers are obvious,
4 but thank you.
5 MR. CHAREST: Your Honor, we move to admit
6 1747 into the record, Plaintiffs' 1747.
7 MR. LEVINE: No objection, Your Honor.
8 THE COURT: Admitted.
9 (Whereupon, Plaintiffs' Exhibit 1747 was
10 admitted into evidence.)
11 Q. (By Mr. Charest) Thank you.
12 Matt, show me, if you would, the third full
13 paragraph in the text, please.
14 Mr. Sweeten is another Corps employee;
15 correct, sir?
16 A. That's correct.
17 Q. All right. And this is after the -- soon
18 after the Harvey event; right?
19 A. Yes, it is.
20 Q. And you told him, "The fact that this could
21 happen has always been known"; correct?
22 A. That's what I stated.
23 Q. And it's a true statement; right?
24 A. That's correct.
25 Q. And when you talk about the fact that this

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1 could happen, you're talking about the events


2 surrounding the Harvey storm, including the storm
3 itself; correct?
4 A. Could I ask you to be specific in what part
5 of the storm event you're talking about?
6 Q. The rain that fell over the Addicks and
7 Barker watersheds that was impounded by the dams that
8 flooded the upstream homes.
9 A. Could you restate your question, please.
10 Q. When you say to Mr. Sweeten "the fact that
11 this could happen has always been known," that this --
12 that everyone has known inside the government, is that
13 a storm with Harvey's magnitude or greater could happen
14 over the Addicks and Barker watershed and cause
15 upstream flooding similar to or greater than what
16 actually happened in Harvey; correct?
17 A. Without seeing the paragraph before this, I
18 don't know what I'm referring to when I say "this could
19 happen."
20 Q. Great.
21 Let's look at the last sentence of the
22 paragraph before, please, Matt. Show them both
23 together if you want. That's great.
24 The paragraph before that you're referring to
25 is "This operation resulted in the flooding of

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1 thousands of homes upstream and hundreds of homes


2 downstream."
3 Does that give the context now, sir?
4 A. Yes, it does.
5 Q. Great. So this that you're talking about is
6 a rain event of Harvey's magnitude over the Addicks and
7 Barker watersheds has always been known within the
8 government could happen; correct?
9 A. It was known that, if we received a large
10 enough rain event, that homes could be flooded upstream
11 and homes flooded downstream.
12 Q. Not just could be, but would be; right?
13 A. If a rain of appropriate magnitude, that
14 homes would be flooded, yes, sir.
15 Q. And the question about whether or not an
16 event of appropriate magnitude would happen is
17 something the government knew probably would happen and
18 can happen; correct?
19 A. Could you state your question together,
20 please, one question.
21 MR. CHAREST: Can you read that back for me,
22 please.
23 THE WITNESS: Say again, sir.
24 MR. CHAREST: I'm asking the court reporter.
25 (Record read by the reporter.)

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1 THE WITNESS: If a storm event of the


2 appropriate magnitude occurred, it was known that water
3 would be impounded behind the dams that would exceed
4 the government-owned property lines.
5 Q (By Mr. Charest) Right. I'm talking about
6 the likelihood of that storm event happening.
7 Is it true to say that the government knew it
8 could happen before Harvey and also knew that it
9 probably would happen?
10 A. I don't know that the government knew that it
11 could happen or would happen since it was an
12 unprecedented rain event.
13 MR. CHAREST: Matt, give me 1597, please, on
14 the screen.
15 Q (By Mr. Charest) Sir, were you involved in
16 meetings involving Addicks and Barker reservoirs and
17 relaying information about the Addicks and Barker
18 reservoirs to local authorities back in 2009?
19 A. Are you referring to the presentation that
20 this slide deck was specifically used for?
21 Q. No. I just asked the question.
22 Were you involved in the presentations to the
23 public and to local authorities involving Addicks and
24 Barker dam in 2009?
25 A. I don't recall specific dates when I was

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1 involved in presentations, but I was involved in


2 numerous presentations on Addicks and Barker Reservoirs
3 during this time period.
4 Q. Okay. And does this -- is that the Corps
5 seal there on the -- on the page at the bottom?
6 A. Yes, it is.
7 Q. All right. And does this look like the type
8 of presentation that the Corps generated for such
9 meetings?
10 A. Yes, it is.
11 MR. CHAREST: Your Honor, I offer
12 Plaintiffs' 1597 into evidence.
13 MR. LEVINE: No objection, Your Honor.
14 THE COURT: Admitted.
15 (Whereupon, Plaintiffs' Exhibit 1597 was
16 admitted into evidence.)
17 MR. CHAREST: Thank you.
18 Matt, turn, if you would, please, to
19 USACE75557, please.
20 Q (By Mr. Charest) This is the Corps telling
21 the attendees of the meeting --
22 I want to look at the second sentence of the
23 first conclusion --
24 -- "After seeing the potential for flooding
25 from the two storms presented" -- we'll find out about

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1 what those are in a second -- "we know" -- we, the


2 Corps -- "knows it" -- the storm event -- "can and
3 probably will happen at some point in time."
4 Is that what that says?
5 A. That's what it says.
6 Q. Does that refresh your recollection about
7 whether or not the government knew that storms of that
8 magnitude can and probably would happen at some point
9 in time?
10 A. That refers to storms that you said we're
11 going to discuss later on, that they could happen.
12 Q. Okay.
13 A. And would happen.
14 MR. CHAREST: Matt, show me 755550, please.
15 Q (By Mr. Charest) Do you recall seeing that
16 image where the Corps put the Storm Claudette over the
17 top of the Reservoirs to see what would happen?
18 A. I'm familiar with that slide.
19 Q. So, yes, you remember that happening --
20 A. Yes.
21 Q. -- right?
22 And Claudette had much more rain than even
23 Harvey over the top of the Addicks and Barker -- over
24 what Harvey had over the Addicks and Barker watersheds;
25 correct?

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1 A. I don't remember the rainfall totals for


2 Claudette.
3 Q. You can take a guess at these by looking at
4 the shaded area and seeing that the Claudette flooding
5 event would be much worse than the Harvey flooding
6 event, correct, sir?
7 MR. LEVINE: Your Honor.
8 THE COURT: Mr. Levine.
9 MR. LEVINE: Would it be possible for
10 Mr. Long to have a copy of the whole slide
11 presentation, please.
12 THE COURT: Yes. Sure.
13 MR. LEVINE: Thank you, Your Honor.
14 Q. (By Mr. Charest) Do you need the
15 presentation to answer my question to see that the
16 extent of the flooding from Claudette, according to the
17 Corps, far exceeds the Harvey event, sir?
18 THE COURT: Mr. Charest, let's wait a moment
19 until Mr. Long has a copy of the entire presentation.
20 MR. CHAREST: Sure.
21 MR. LEVINE: Your Honor, may I make a
22 standing request that, after he brings documents up,
23 that the witness is provided a copy, please?
24 THE COURT: If it's necessary.
25 MR. LEVINE: Thank you, Your Honor.

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1 THE WITNESS: Okay. Could you restate your


2 question, please.
3 Q. (By Mr. Charest) The pool that's reflected
4 in this Claudette model over top of Addicks is bigger
5 than the Harvey pool; correct?
6 A. I do not know the actual limits of the Harvey
7 pool, so I cannot state whether it is or is not.
8 Q. The other model that the Corps used in this
9 presentation was Allison.
10 Do you recall that, sir?
11 A. Yes, I do.
12 Q. So when -- at the end of the conclusion the
13 Corps's talking about "After seeing the potential for
14 flooding from these two storms presented" -- being
15 Allison and Claudette -- "we, the government, know
16 it" -- the storm events -- "can and probably will
17 happen at some point in time."
18 Right, sir?
19 A. That's correct.
20 Q. The government knew that, in the event of a
21 storm of this magnitude, those homes would be flooded;
22 correct?
23 A. The government knew that storms of a
24 magnitude of Allison located over the Addicks watershed
25 would generate pools that would exceed the government

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1 property limits.
2 Q. Claudette as well; right?
3 A. Claudette as well, yes.
4 Q. Okay. And so going back to -- well, we'll do
5 one more.
6 Bring up 206, please, Matt.
7 This is the multiagency tabletop exercise
8 that we discussed. Do you recall?
9 A. Okay. I do have that in here?
10 Q. Should be, yes.
11 MR. CHAREST: May I approach?
12 THE COURT: Yes.
13 Q. (By Mr. Charest) While he's finding the
14 actual document, that's the multiagency tabletop
15 exercise we've been discussing; right, sir?
16 A. Ask again. I was looking at --
17 Q. You -- the multiagency tabletop exercise that
18 this document refers to is the multiagency tabletop
19 exercise that you said you were involved in; correct?
20 A. This is the actual -- after-action report for
21 that exercise.
22 Q. And you're familiar with this document?
23 You've seen it before?
24 A. Yes.
25 MR. CHAREST: Move to admit Defense

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1 Exhibit 206, please.


2 MR. LEVINE: No objection, Your Honor.
3 THE COURT: Admitted.
4 (Whereupon, Defendants' Exhibit 206 was
5 admitted into evidence.)
6 Q. (By Mr. Charest) On the first page of the
7 document, the last sentence of the first paragraph, the
8 Corps says, in connection with this event, "Judging
9 from the magnitude of past storms experienced in our
10 area, it is only a matter of time before the reservoirs
11 flood off government-owned land."
12 Did I read that correctly?
13 A. Yes, you did.
14 Q. That's a true statement; right?
15 A. Yes.
16 Q. And the Corps knew in 2009 that it was just a
17 matter of time before the dams caused flooding over and
18 exceeding government-owned lands; correct?
19 A. That's correct.
20 MR. CHAREST: Turn, please, Matt, to
21 USACE462 -- sorry -- 467221. 467221.
22 Q. (By Mr. Charest) "The purpose of the
23 tabletop exercise" -- I want to look at the bottom,
24 actually -- "is to provide the participants with a
25 realistic major flood event."

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1 Do you see that at the bottom, sir?


2 A. Yes, I do.
3 Q. And so the idea behind the exercise was to
4 develop a realistic major flooding event for training
5 with local authorities; correct?
6 A. Yes, it is.
7 Q. All right. Let's see what the realistic
8 flooding event was.
9 Matt, USACE467252.
10 Appendix B describes the storm scenario.
11 Are you with me, sir?
12 A. Yes, I am.
13 Q. The model that was used to -- to develop this
14 realistic major flooding event was a combination of
15 Claudette and the 1899 storm over Hearne, Texas;
16 correct?
17 A. Yes, that's what it says.
18 Q. Do you know how much rain Harvey deposited
19 over the Addicks and Barker watersheds, even roughly?
20 A. It was in the range of 30-plus inches.
21 Q. All right. Look at the second paragraph
22 under Claudette. It says 42 inches in a 24-hour
23 period; correct?
24 A. That's what it says.
25 Q. All right. And so the rainfall from

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1 Claudette exceeded the rainfall from Harvey over the


2 Addicks and Barker watersheds; correct?
3 A. That's what this indicates.
4 Q. Correct. So when we turn back, then, to the
5 Plaintiffs' 1812, which is in the record, and the
6 question and answer No. 11, where it says "The
7 unprecedented flood events in this case exceeded all
8 prior estimations."
9 It's a false statement; right, sir? It did
10 not exceed -- Harvey did not exceed all prior
11 estimations, did it, sir?
12 A. The storms used for the exercise did not --
13 did not state that the -- that they necessarily would
14 occur; it was what was being used for the exercise
15 purposes.
16 Q. It was a realistic major flooding event,
17 according to the exercise; right, sir?
18 A. That's correct.
19 Q. All right. You still just don't want to say
20 that it wasn't a prior estimation or something? Is
21 that what you're trying to get to?
22 MR. LEVINE: Objection, Your Honor. Vague as
23 to the timing of prior estimations.
24 THE COURT: Overruled.
25 MR. CHAREST: I'm sorry.

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1 THE COURT: Overruled.


2 MR. CHAREST: Thank you.
3 Q. (By Mr. Charest) 2009 is before 2017; right,
4 sir?
5 A. Say again.
6 Q. 2009 is before 2017?
7 A. Yes, it is.
8 Q. Thank you.
9 The last document I want to look at with you,
10 sir, is Upstream 104. Upstream 104 is a series of
11 emails that was produced in response to a four-year
12 request in a different case.
13 You've seen these documents before, I take
14 it, sir?
15 A. I don't know that I saw these documents.
16 Q. Okay.
17 Turn, if you would, Matt, to page 13 of 17 on
18 the counter. Thank you.
19 About a third of the way down, there's an
20 email from you to the folks at the Galveston division;
21 correct?
22 A. This is an email from me in the Galveston
23 district, yes.
24 Q. You're talking about how to respond to a
25 request regarding Grand Parkway.

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1 Do you recall that?


2 A. That's correct.
3 Q. This is your email that we're looking at, and
4 you're involved in this series of mails associated with
5 this discussion; correct?
6 A. That's correct.
7 MR. CHAREST: Your Honor, I offer
8 Plaintiffs' 104, please.
9 MR. LEVINE: Your Honor, he's only identified
10 one page out of a multipage document. It's unclear
11 what they're seeking to admit.
12 MR. CHAREST: Seeking to admit Exhibit 104.
13 THE COURT: The Court concurs with
14 Mr. Levine. PX104 is admitted only insofar as page 13
15 that is concerned. That is the email that Mr. Long
16 authored.
17 MR. CHAREST: All right. I'll give you some
18 more foundation, then, for 10, because I want to talk
19 about 10 as well, sir.
20 Turn, if you would, to page 10 of 17, Matt.
21 Q. (By Mr. Charest) And that's an email you
22 received from Joseph Hrametz, H-r-a-m-e-t-z, correct,
23 on May 11, 2011, sir?
24 A. It would indicate that I did, yes.
25 Q. Yeah. And it's a continuation of the same

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1 discussion; right, sir? The Grand Parkway?


2 A. Yes.
3 MR. CHAREST: Okay. So I offer that page as
4 well, sir.
5 THE COURT: What was the page number again?
6 MR. CHAREST: 10 of 17, sir.
7 THE COURT: I'm sorry.
8 MR. CHAREST: 10 -- well, it really should be
9 10 and 11 of that email, 10 and 11 of 17.
10 THE COURT: So we have 13 earlier and then 10
11 and 11 now?
12 MR. CHAREST: Well, to be fair, it's 13 to 14
13 is Mr. Long's initial email, and then 10 and 11 is the
14 second email we talked about.
15 THE COURT: Mr. Levine.
16 MR. LEVINE: No objection as to those
17 specific pages, Your Honor.
18 THE COURT: All right. Those specific pages
19 are 10 and 11 and 13 and 14. They're admitted.
20 (Whereupon, Plaintiffs' Exhibits 104-10,
21 104-11, 104-13 and 104-14 were admitted
22 into evidence.)
23 MR. CHAREST: Thank you.
24 Q. (By Mr. Charest) And, fundamentally, I'm
25 going to try to fast-forward the discussion a little

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1 bit. You proposed a draft response by the Corps in


2 relation to this Grand Parkway question. And,
3 ultimately, Mr. Hrametz -- H-r-a-m-e-t-z -- used some
4 of your language but not all of your language and
5 issued a response; correct?
6 A. Without seeing the entire document and seeing
7 my email and Mr. Hrametz's email together, I would have
8 a hard time putting those together there.
9 MR. CHAREST: Page 13, please, Matt.
10 Q. (By Mr. Charest) At the beginning of your
11 email you say, "I have been asked directly by
12 regulatory for my comments on the Grand Parkway Seg. E
13 action."
14 Does that put you in a frame of mind?
15 A. Yes.
16 Q. And then what follows is your proposed
17 comments; correct?
18 A. Yes.
19 Q. All right. And in it you note that, in
20 Addicks, eight of the last ten major pools have
21 occurred in the '90s and, in Barker, nine of the last
22 ten major pools have occurred in the '90s. Correct?
23 A. That's what I stated.
24 Q. It's true when you said it; right?
25 A. Yes.

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1 Q. And then Mr. Hrametz on page 10 takes some of


2 your text but changes some of it as well; is that fair?
3 A. Yes.
4 Q. Okay. Let's see what he says about the
5 second of two major areas of concern near the bottom of
6 the page.
7 It says, "Both Addicks and Barker dams can
8 impound or store more water than the Corps owns real
9 estate to store them. Larger, longer-lasting, more
10 frequent pools addressed above increase the potential
11 of this occurring."
12 Then "Should this occur" -- the "this" being
13 flooding, impounding of the water being on
14 government-owned lands -- "a large number of residents,
15 businesses, and infrastructure located within the
16 maximum possible pools could be severely impacted for
17 an extended period of time."
18 Did I read that correctly, sir?
19 A. Yes, you did.
20 Q. The Corps' understanding was that the large
21 number of residents in a situation like Harvey, where
22 the government impounded water on private property,
23 would be, and I quote, severely impacted for an
24 extended period of time; correct?
25 A. This is a statement provided by Mr. Hrametz,

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1 and it states just what it does there.


2 Q. And it's true; right, sir?
3 A. It's true that a large, strong event could
4 impact residential business and infrastructure located
5 in the maximum possible pool area.
6 Q. But not just impacted. What word did
7 Mr. Hrametz use to describe the impact, sir?
8 A. Severely impacted.
9 Q. And that's a true statement; right?
10 A. Yes.
11 Q. The government is prepared for another
12 weather event similar to the Harvey weather event;
13 correct?
14 A. Can you restate your question?
15 Q. The government is prepared to respond to and
16 operate the dams in connection with another weather
17 event similar to Harvey?
18 A. The Corps is ready to perform their duties
19 and operate the reservoirs in any rain event.
20 Q. And if the same rain event happened, the
21 Corps would take the same steps again, correct, in the
22 future?
23 A. I'm not the final decision-making individual
24 on that. So you'd be asking me to make an assumption.
25 Q. If Harvey came again and hit exactly as it

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1 did, the Corps would close the gates when it did and it
2 would open the gates when it did under the exact same
3 conditions; right?
4 A. The Corps would perform as guidance provides
5 for.
6 Q. The guidance of the water manual, which
7 guided the Corps in Harvey; correct?
8 A. Yes.
9 Q. And that guide hasn't changed, has it, sir?
10 A. No, it has not.
11 Q. The weather event that caused the closing and
12 opening of the gates for Addicks and Barker dams could
13 be inevitably recurring; correct?
14 A. You -- you could have additional weather
15 events in the future that were like Harvey.
16 Q. It's inevitable that it will happen again;
17 correct?
18 A. You're asking me to guess on what weather
19 events will happen in the future.
20 Q. Do you recall being deposed, sir?
21 A. Say again, sir.
22 Q. Do you recall being deposed in this case?
23 A. Yes, I do.
24 Q. Do you recall being asked whether or not
25 these events were inevitably recurring?

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1 A. I do not specifically recall being asked that


2 or not asked that.
3 Q. Do you deny that these events are inevitably
4 recurring?
5 A. We have continuing storm events occurring in
6 the metropolitan Houston area that are of large
7 magnitudes that could have impacts similar to those of
8 Harvey.
9 Q. That's today, next year, every year going
10 forward. That's true; correct?
11 A. That's correct.
12 MR. CHAREST: No more questions, Your Honor.
13 THE COURT: Thank you.
14 Mr. Levine, cross-examination, except that
15 it's cross-examination of a friendly witness, so the
16 limits are like those of direct examination.
17 MR. LEVINE: Thank you, Your Honor.
18 CROSS-EXAMINATION
19 BY MR. LEVINE:
20 Q. Mr. Long, how long have you worked at the
21 Army Corps of Engineers?
22 A. In excess of 40 years.
23 Q. Okay. What's your current title?
24 A. Natural resource management specialist.
25 Q. And was that the same during Hurricane

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1 Harvey?
2 A. Yes, it was.
3 Q. Okay. And what are your roles and
4 responsibilities as a natural resources management
5 specialist?
6 A. My job is to be the point of contact on
7 natural resource management issues for Addicks and
8 Barker to the district and to serve as a liaison
9 between our construction office and operations district
10 and our public affairs office and the operations -- for
11 the operations of Addicks and Barker, including being a
12 primary spokesman for Addicks and Barker dams and
13 reservoirs.
14 Q. And in that role as spokesman, does that
15 include public outreach?
16 A. Yes, it does.
17 Q. And is that historically and presently?
18 A. Yes, it is.
19 Q. Okay. And what's your educational
20 background?
21 A. I've got a degree in park administration from
22 Arkansas Tech University.
23 Q. And when did you get that degree?
24 A. May of 1980.
25 Q. Did you work for the Corps in college?

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1 A. Yes, I did.
2 Q. And did you work for the Corps upon
3 graduating from college?
4 A. Yes, I did.
5 Q. And where did you go to work for the Corps
6 when you graduated?
7 A. The Galveston district, Addicks and Barker
8 project office.
9 Q. And how do you refer to the project? What's
10 the name of the project?
11 A. The official name is the Buffalo Bayou and
12 tributary flood control project, which Addicks and
13 Barker dams and reservoirs are a part of.
14 Q. And can we refer to that as the project
15 throughout your testimony?
16 A. Yes, we can.
17 Q. Mr. Long, are you a meteorologist?
18 A. I am not.
19 Q. Are you an engineer?
20 A. I am not.
21 Q. Have you done any hydraulic investigations of
22 the dams?
23 A. I have not.
24 Q. Have you done any hydraulic investigations of
25 Hurricane Harvey?

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1 A. I have not.
2 Q. Okay are there engineers that do that kind of
3 work?
4 A. Yes, there are.
5 Q. Okay. You were asked some questions about
6 the ABEC group -- ABECT group.
7 Do you recall that?
8 A. Yes, I do.
9 Q. Okay. And who is ABECT?
10 A. ABECT is a team that was set up to aid in the
11 dissemination of information on Addicks and Barker.
12 And in severe weather events, the teams consist of
13 Corps team members from the operations, engineering dam
14 safety, emergency operations, and hydrology and
15 hydraulics division as well as individuals from Harris
16 County, City of Houston, Fort Bend County and other
17 local government-owned entities that deal with
18 management of emergency situations.
19 Q. And you were asked some questions about a
20 tabletop exercise.
21 Do you recall that?
22 A. Yes, I do.
23 Q. Okay. And do you recall what other municipal
24 or governmental agencies participated in those
25 exercises?

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1 A. That meeting was well attended by numerous


2 agencies, but I do not remember the specific agencies
3 in attendance.
4 Q. Do you think members from Harris County were
5 there?
6 A. Yes.
7 Q. Do you think members from Fort Bend County
8 were there?
9 MR. CHAREST: Leading, Your Honor.
10 THE COURT: On the other hand, it is leading,
11 but it's allowable.
12 MR. LEVINE: Thank you, Your Honor.
13 Q. (By Mr. Levine) Does the Corps have the
14 ability to order an evacuation?
15 A. To my knowledge, they do not.
16 Q. Okay. Do partner agencies or governmental
17 agencies that are part of the ABECT group have that
18 authority?
19 A. Yes, they do.
20 Q. I want to go back to what you were talking
21 about regarding your public outreach liaison duties.
22 When did you first start doing outreach as
23 part of your job?
24 A. That would have been approximately in the mid
25 '80s.

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1 Q. Okay. And who was that outreach to?


2 A. To communities, businesses, and governmental
3 entities that had an interest in Addicks and Barker
4 dams and reservoirs.
5 Q. Is that both upstream and downstream of the
6 dams?
7 A. Yes. That would include the entire watershed
8 or areas of interest surrounding those projects.
9 Q. Okay. And how were those outreach
10 opportunities typically initiated?
11 A. Typically, the interested parties would come
12 to us requesting information or a briefing -- briefing
13 on the projects, and we would go to them and provide
14 them with briefings for them.
15 Q. And in those early days, the late '80s, how
16 often were you doing those outreach opportunities?
17 A. Numerous times every year.
18 Q. Since having an outreach component to your
19 responsibilities, how many presentations have you made
20 to the greater Houston community?
21 A. I would have to say dozens and dozens.
22 Q. Okay. And what was the general message of
23 your outreach to the Houston community at large?
24 MR. CHAREST: Objection, Your Honor.
25 THE COURT: Mr. Charest.

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1 MR. CHAREST: It's a big jump between the


2 things he's talking about in the Houston community at
3 large in terms of foundation.
4 THE COURT: Overruled.
5 THE WITNESS: Okay. The message that we
6 delivered covered the purpose, history, and operations
7 of Addicks and Barker dams and reservoirs and also the
8 limitation of the projects. We would discuss why we
9 were there, how we got there, our partnership with
10 other agencies and the limitations of the projects.
11 Q. (By Mr. Levine) Let's talk about the
12 upstream community.
13 How would you describe the geographic
14 communities upstream of the dams?
15 A. Those would be any areas beyond the
16 government property limits within the watershed for
17 Addicks and Barker reservoirs.
18 Q. Okay. And, over the years, how many outreach
19 presentations have you made to the upstream community?
20 A. Again, dozens of presentations.
21 Q. Okay. And who was that outreach with?
22 A. It would be with community associations,
23 business associations, and governmental entities that
24 had an interest in some way, fashion, or form in the
25 history and operations of Addicks and Barker

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1 reservoirs.
2 Q. And how were those initiated?
3 A. Again, they were initiated at the request of
4 those entities requesting information on the projects
5 so they could be better informed of our operations and
6 management of the projects.
7 Q. And about how often would those occur?
8 A. Depending on what was happening there in a
9 given year, they may occur very frequently once a month
10 or very infrequently once every couple of years. But
11 there was dozens of times that they did occur.
12 Q. Okay. And what was the general message of
13 your outreach to the upstream community?
14 A. The general outreach was again the history
15 and operations of the project, but we also made sure we
16 included information on the storage capacity of the
17 projects, and that, in severe storm events where we
18 stored large pools, that those pools could exceed the
19 limits of government-owned land.
20 And we also always recommended that the
21 public acquire flood insurance to help protect them
22 should there be an event that would impact their homes.
23 Q. And when you say "impact their homes,"
24 what -- what were you -- what do you mean by that?
25 A. Water stored behind the projects, the --

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1 behind the dams that would result in floodwaters in


2 their homes.
3 Q. Did you ever conduct presentations with
4 partner agencies?
5 A. Yes, we did quite often.
6 Q. And who were some of those partner agencies?
7 A. It would be Harris County Flood Control
8 District, Fort Bend County office of emergency
9 operations, and other public agencies with an interest
10 on the project.
11 Q. And would you and those partner agencies talk
12 about flood insurance in those presentations?
13 A. Yes, we did.
14 Q. And what would you say about flood insurance?
15 A. We would encourage everyone to have flood
16 insurance because of the susceptibility of everyone to
17 being impacted by flood events within the area.
18 Q. Are interactions with members of the press
19 part of your outreach responsibilities?
20 A. Yes, it is.
21 Q. Okay. And do you know how many engagements
22 you've had with members of the press during the time
23 that you've had these responsibilities?
24 A. Again, dozens.
25 Q. And how were those engagements typically

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1 initiated?
2 A. Generally, the press would come to the Corps,
3 either directly to me or the Addicks field office or
4 our public affairs office.
5 If they came directly to me or the Addicks
6 field office, they were directed to public affairs.
7 And then the media -- the media entity would be
8 directed back to me to conduct an interview.
9 Q. And I want to talk about the timeline now of
10 the upstream outreach that you've described for us.
11 When did you first start outreach efforts
12 with the upstream community?
13 A. It would also have been in the mid to late
14 '80s.
15 Q. Okay. And how did that come about?
16 A. Again, at the request of -- of business
17 groups, homeowner groups, individual homeowners, or
18 other entities that had an interest in our operations
19 of the projects.
20 Q. And do you recall Fort Bend County having an
21 interest in the late 1980s?
22 A. Yes, I do.
23 Q. Okay. And what was Fort Bend County
24 interested in?
25 A. At the time, the areas behind Barker

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1 Reservoir that's in Fort Bend County was just beginning


2 to be developed, and they were working on drainage
3 plans for those areas.
4 And the engineering firm for the drainage
5 system came to me and said that the Fort Bend County
6 Commissioners Court wanted some terminology placed on
7 the deeds for the area that would indicate that the
8 areas were subject to controlled inundation through the
9 operations of the Barker Reservoir should severe storm
10 events occur.
11 Q. And when you say "deeds," does that include
12 the plat maps for Fort Bend County that were being
13 developed at that time?
14 A. Yes, it does.
15 Q. Okay. And do you know, was language similar
16 to what you just described placed on the plats for Fort
17 Bend County at that time?
18 A. I have seen it on some of the plats.
19 Q. I'm sorry. Did you say "several plats"?
20 A. I -- I -- I saw that on several plats.
21 Q. Okay. Thinking again about the -- the mid
22 1980s time frame -- time frame -- excuse me -- was
23 there work on Addicks and Barker dams that was
24 performed during the mid 1980s?
25 A. Yes, there was.

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1 Q. What did that work involve?


2 A. It involved raising the central or main
3 embankments of the dam and hardening the auxiliary
4 spillways at the end the dams with concrete.
5 Q. And by raising the main embankments, did that
6 change the amount of water that the reservoir could
7 hold?
8 A. It did not.
9 Q. Okay. I want to turn to a document, please.
10 It's PX2284.
11 MR. LEVINE: And, Your Honor, this document
12 is already in evidence.
13 I'll just wait for you to get the binder.
14 That's fine. We'll go with what's on the
15 screen.
16 Q (By Mr. Levine) Mr. Long, do you recognize
17 this document?
18 A. I have seen it before.
19 MR. LEVINE: I'm sorry, Your Honor. May I
20 proceed?
21 THE COURT: Yes.
22 MR. LEVINE: Thank you, Your Honor.
23 Q (By Mr. Levine) Okay. And what is this
24 document?
25 A. This is a memorandum to file and to a Stan

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1 Hubbard from RPA.


2 Q. Okay. And do you know a Randy Arbuckle?
3 A. I do know Randy Arbuckle.
4 Q. And do you think RPA is Randy Arbuckle?
5 A. I do believe so.
6 Q. Okay. And what's the date of this document?
7 A. The date of this document is August 24, 1989.
8 Q. Do you recall sharing some information with
9 Mr. Arbuckle about the Barker Reservoir?
10 A. I do recall carrying on a conversation with
11 him about the Addicks and Barker Reservoir.
12 Q. And is it some of that information referenced
13 in this document?
14 A. Yes, it is.
15 Q. I'd like to turn to the second page of the
16 document, which is the Bates Number FB633.
17 There's a chart on that page referred to as
18 "Fact Sheet Information." Do you see that chart?
19 A. Yes, I do.
20 Q. And does that information look familiar?
21 A. Yes, it does.
22 Q. How does that information look familiar?
23 A. It looks like information that would have
24 been used at the time to discuss pools and pool
25 capabilities within Addicks and Barker Reservoir -- or

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1 Barker Reservoir in this situation.


2 Q. Did you prepare that information?
3 A. I would have gathered the information
4 together.
5 Q. Okay. And what was the purpose of sharing
6 that fact sheet information in 1989?
7 A. To ensure that the developers of the adjacent
8 property were fully aware of the capabilities of the
9 project and the size of the pools that could occur
10 behind Barker Dam.
11 Q. And do you see there's a reference to an SPF
12 pool?
13 A. Yes, I do.
14 Q. Does that refer to the standard project flood
15 pool?
16 A. Yes, it does.
17 Q. And does that -- is that larger than the
18 USACE boundary pool?
19 A. Yes, it is.
20 Q. Okay.
21 Charles, if you can pull that down.
22 If we can look at the second paragraph on
23 that page. If you -- if you could read that paragraph,
24 please.
25 A. Out loud?

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1 Q. Yes, sir.
2 A. Okay.
3 "USACE recently completed the dam safety
4 project, which included raising part of the dam and
5 constructing concrete-lined overflow spillways along
6 the depressed section near the ends of the dam. This
7 did not increase the effective storage of the dam."
8 Q. Okay. And is that what you were referring to
9 a few moments ago when you were talking about work that
10 was done in the 1980s?
11 A. Yes.
12 Q. Thank you.
13 I'd like to turn to Document JX45.
14 And, Your Honor, this document is also
15 already in evidence.
16 Mr. Long, can you just take a look at that
17 document and let me know when you're ready.
18 A. (Witness reviewing document.)
19 Okay.
20 Q. Mr. Long, do you recognize this document?
21 A. Yes, I do.
22 Q. And what is it?
23 A. It's a letter from Mr. Crocker, the Fort Bend
24 County engineer, to the county judge for Fort Bend
25 County on July 6th, 1992.

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1 Q. Okay. And do you know Mr. Crocker?


2 A. Yes, I do.
3 Q. And how do you know Mr. Crocker?
4 A. As the Fort Bend County engineer, we would
5 have had conversations back in the late '80s and early
6 '90s concerning the operations of Addicks and Barker
7 dams and reservoirs.
8 Q. And did that include potential inundation and
9 potential flooding?
10 A. Yes, it would have.
11 Q. And is some of that referenced in this
12 document?
13 MR. CHAREST: Leading, just consistently
14 here.
15 So leading, sir.
16 THE COURT: On the other hand, we have this
17 document in evidence, and the questions actually refer
18 to the document. So it's not a problem.
19 Overruled, Mr. Levine.
20 MR. LEVINE: Thank you.
21 Q (By Mr. Levine) Mr. Long, can we turn to the
22 second page of the document, please.
23 A. Okay.
24 Q. And are you familiar with the information on
25 page 2?

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1 A. Yes, I am.
2 Q. And for the record, that page is FB6379.
3 How are you familiar with that information?
4 A. This looks like a spreadsheet that I would
5 have assembled back about that time with information on
6 Addicks and Barker Dams.
7 Q. And what's the date on that chart?
8 A. March 30th, 1992.
9 Q. And did you share that information with
10 Mr. Crocker?
11 A. Yes, I did.
12 Q. And what does this chart show?
13 A. It shows the -- the top four pools of record
14 and limited government-owned land and the maximum
15 possible pools for both Addicks and Barker dams and
16 reservoirs.
17 Q. Okay. And what message were you trying to
18 convey to Mr. Crocker in 1992 by sharing the
19 information in this chart?
20 A. The information demonstrates that pool
21 elevations could exceed the government-owned land and
22 that we had two pools in those top four pools right
23 together in 1991 and 1992, indicating more frequent
24 pools occurring at the time.
25 Q. Thank you.

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1 You can take that exhibit down, Charles.


2 Mr. Long, thinking back to the early 1990s,
3 what technology were you using to make your
4 presentations to the public?
5 A. We were -- initially, we were using Kodak
6 slide decks and carousel projectors. And then, as
7 computers came into play, we transferred over to
8 PowerPoint presentations.
9 Q. Okay. And do you still have those Kodak
10 slides?
11 A. No, we do not.
12 Q. How come?
13 A. They were stored in a low cabinet in our
14 office, and they were inundated at the time of
15 Hurricane Harvey and destroyed.
16 Q. As the years went along, did your message to
17 the upstream community regarding potential inundation
18 behind the dams change?
19 A. The general message stayed the same, but the
20 message did change as history changed, with more
21 frequent pools and new pools of record and updating --
22 updates in the survey data we used for the pools.
23 Q. Okay.
24 I'd like to introduce Defendants'
25 Exhibit 933.

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1 And, Mr. Long, can you take a moment to


2 review that document and let me know when you're ready.
3 A. (Witness reviewing document.)
4 Okay. I read it.
5 Q. Mr. Long, do you recognize this document?
6 A. I do.
7 Q. And what is this?
8 A. This is a letter to me from a
9 Mr. Kirkpatrick, apparently representing communities
10 upstream of Addicks and Barker reservoirs.
11 Q. Is there another document behind this one?
12 A. The letter is -- the -- the initial letter
13 dated May 7th of 1999 is followed by a letter that's
14 undated back to Mr. Kirkpatrick from the Galveston
15 district. And it's signed by -- let me verify --
16 Colonel Nicholas Buechler.
17 Q. And who -- who is colonel -- or Colonel
18 Buechler?
19 A. He was the district commander at the time.
20 Q. And when you'd get a request like the one
21 that you received on the first page, what would you do?
22 A. Due to the sensitivity of this subject, I
23 would have forwarded this letter to the district office
24 for them to develop an answer to it and provide them
25 with information they may want to include in that

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1 answer.
2 Q. And is that what you did with this particular
3 letter on the first page of DX933?
4 A. It would appear that I did.
5 Q. Okay. And did the Corps respond to that
6 letter on the first page?
7 A. Yes. The letter of response was the one we
8 discussed earlier signed by Colonel Buechler.
9 Q. Okay. And is there a letterhead at the top
10 of the response from Colonel Buechler?
11 A. Yes, there is.
12 Q. And whose letterhead is that?
13 A. The Department of Army Galveston District
14 Corps of Engineers.
15 Q. Okay. And regarding the -- the -- that
16 document, is that a document that's kept in the
17 ordinary course of the Corps' business?
18 A. Yes, it is.
19 Q. Okay.
20 MR. LEVINE: Your Honor, I move that DX933 be
21 admitted into evidence.
22 MR. CHAREST: No objection, Your Honor. It
23 is late submitted, but it's fine. No objection.
24 THE COURT: Admitted.
25 (Whereupon, Defendants' Exhibit 933 was

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1 admitted into evidence.)


2 MR. LEVINE: It was -- just for the record,
3 it was originally Upstream Exhibit 1284, and that was
4 removed the Friday before trial began.
5 THE COURT: Okay.
6 Q (By Mr. Levine) Mr. Long, if you could
7 please go to the first page of the document, the Bates
8 stamp USACE464796. And could you read the second
9 sentence of the first paragraph, please, starting with
10 "We have recently become."
11 A. "We have recently become aware of plans by
12 the Harris County Flood Control District and the Corps
13 of Engineers to allow the Barker and Addicks reservoirs
14 to overfill in the event of a torrential downpour and
15 flood homes in this residential area rather than
16 release waters to go further downstream."
17 Q. And can you also read the first sentence of
18 the second paragraph, please.
19 A. "We would like to have a written explanation
20 of your present policy regarding flood issues in the
21 rapidly maturing I10 west corridor detailing what flood
22 control plans are in the immediate future for our
23 residents."
24 Q. Thank you.
25 And if we could look at the next page of the

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1 document, please, the one ending in Bates stamp 797.


2 Sorry. Excuse me. The next page, 798.
3 Can you -- the paragraph that begins
4 "hydraulic studies," can you read that -- those first
5 two sentences, please.
6 A. "Hydraulic studies under present operating
7 conditions show that Addicks Reservoir has
8 government-owned land, GOL, to contain floods up to a
9 frequency of about once in 250 years due to overflow
10 from the Cypress Creek watershed.
11 "Barker Reservoir, however, has
12 government-owned land to contain floods up to a
13 frequency of about once in 70 years, which corresponds
14 to an elevation of 97.3 feet mean sea level, MSL."
15 Q. And I'm sorry. The next sentence as well,
16 sir.
17 A. "The 100-year flood pool for Barker Reservoir
18 corresponds to an elevation of 97.8 feet MSL."
19 Q. A little further down in that paragraph, can
20 you read where it starts "In 1992."
21 A. "In 1992, Addicks and Barker reservoirs
22 experienced their highest pool of record of 100.6 feet
23 MSL and 95.9 feet MSL, respectively."
24 Q. The next sentence, please.
25 A. "Under existing conditions, the reservoirs

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1 have the physical capability of ponding water to an


2 elevation of 112 MSL for Addicks and 106 MSL for Barker
3 before water starts to flow around the ends of the
4 dams."
5 Q. Okay. And if you can go a little bit further
6 down in that paragraph, where it says "while this is
7 very encouraging," and read from there, please.
8 A. "While this is very encouraging, we do feel
9 that, in the rare event of a catastrophic rainfall
10 occurring over the Addicks and Barker watersheds,
11 upstream interests could possibly experience impacts
12 with the continued urbanization of the upstream
13 watersheds."
14 Q. And, Mr. Long, is this consistent with the
15 message you were delivering to the upstream community
16 around this time when you were making your outreach
17 presentations?
18 A. Yes, it was.
19 MR. LEVINE: Your Honor, I see we're
20 approaching 10:30. I have more documents to go through
21 with Mr. Long. But if you want to take our morning
22 break, this would be a natural stopping point.
23 THE COURT: Mr. Charest?
24 MR. CHAREST: I can go or stay as you like,
25 sir.

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1 THE COURT: I'm sorry?


2 MR. CHAREST: I have no preference whatever
3 you want to do, sir.
4 THE COURT: Mr. Long, do you mind if we take
5 a 15-minute recess at this point?
6 THE WITNESS: Not at all.
7 THE COURT: All right. Thank you.
8 We're in recess.
9 THE CLERK: All rise. Court is adjourned.
10 (Whereupon a short recess was taken.)
11 THE CLERK: All rise. The United States
12 Court of Federal Claims is now in session, the
13 Honorable Charles F. Lettow presiding.
14 THE COURT: Please be seated.
15 Mr. Levine, you may proceed.
16 MR. LEVINE: Mr. Long is right there, Your
17 Honor.
18 THE COURT: He's coming?
19 MR. LEVINE: Yes.
20 THE COURT: Welcome back, Mr. Long.
21 THE WITNESS: Thank you, sir.
22 MR. LEVINE: May I proceed, Your Honor?
23 THE COURT: Yes.
24 MR. LEVINE: Thank you.
25 Q. (By Mr. Levine) If we could go back to that

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1 last exhibit, DX933, please, the page ending in 798.


2 MR. CHAREST: If I may, I don't have a copy
3 of that document still. And we thought we had it, but
4 it's the one that was late produced, so -- or late
5 listed, so I need a hard copy if possible.
6 THE COURT: Do you have access to a monitor?
7 MR. CHAREST: I do, but there's a page I want
8 to look at, Your Honor, for my redirect. So I need the
9 document.
10 THE COURT: Mr. Levine, do you have an extra
11 copy for Mr. Charest?
12 MR. LEVINE: 933, it was originally PX1284 of
13 the -- do you have a copy?
14 MS. TARDIFF: We don't have one, and we don't
15 have the old plaintiffs' version.
16 MR. LEVINE: Okay. Can we have somebody
17 print it up, and I will come back to this one.
18 Your Honor, may I ask one question relating
19 to the present page?
20 THE COURT: Yes. Just a moment. Let me see
21 if we have a copy.
22 MR. LEVINE: Your Honor, I don't believe it
23 will be in your binder.
24 THE COURT: All right.
25 MR. LEVINE: My apologies.

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1 THE COURT: We might get some assistance from


2 Mr. Charest's colleagues.
3 MR. CHAREST: What was the old number, the
4 plaintiffs' number?
5 MR. LEVINE: 1284.
6 MR. CHAREST: We'll find a different version
7 of the same document, sir.
8 THE COURT: All right. Thank you.
9 Mr. Levine, go ahead.
10 MR. LEVINE: Thank you, Your Honor.
11 Q. (By Mr. Levine) Mr. Long, kind of in the
12 middle of that paragraph there's a sentence that reads
13 "The United States geological survey."
14 Can you read that sentence for us, please.
15 A. "The United States geological survey
16 quadrangle sheets for the reservoirs highlight the
17 approximate impoundment areas created by these dams, as
18 shown on the attached enclosure; but, unfortunately,
19 these quadrangles have not been updated to show current
20 development."
21 Q. Okay. And if you could turn two pages back
22 in the document. The second-to-last page and the last
23 page, are those the quadrangle sheets that were
24 enclosed that Colonel Buechler was referring to?
25 A. These are portions of this quadrangle sheet,

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1 yes.
2 Q. Thank you.
3 Mr. Long, do you recall Tropical Storm
4 Allison in June 2001?
5 A. Yes, I do.
6 Q. And how do you recall it?
7 A. It was a severe storm event that occurred in
8 the metropolitan Houston area; but, fortunately, the
9 Addicks and Barker watersheds were spared the majority
10 of the impact from those storm events.
11 MR. LEVINE: Your Honor, I'd like to
12 introduce Defendants' Exhibit 886.
13 Q (By Mr. Levine) Mr. Long, can you take a
14 minute to review that and let me know when you're
15 ready.
16 A. (Witness reviewing document.)
17 Okay.
18 Q. All right. Mr. Long, have you seen this
19 before?
20 A. Yes, I have.
21 Q. What is it?
22 A. This is a copy of a article that occurred in
23 the Houston Chronicle on December 23rd, 2001.
24 Q. Okay. And does this article discuss the
25 possibility of flooding behind Addicks and Barker

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1 reservoirs?
2 A. Yes, it does.
3 MR. LEVINE: Your Honor, I'd move that DX886
4 be admitted into evidence.
5 MR. CHAREST: It's almost exclusively
6 hearsay, sir, so we object.
7 THE COURT: What's the purpose? The Court
8 really is not inclined to admit this.
9 MR. LEVINE: I understand, Your Honor. We're
10 not offering it for the truth of the matter asserted.
11 We're offering it for the purpose that it demonstrates
12 notice to the public.
13 MR. CHAREST: Your Honor, I just have
14 objection to the whole notice. On this document
15 itself, what the notice generally -- under Preseault,
16 the owner's objectionable awareness of facts around the
17 circumstances of their ownership don't affect their
18 right and entitlements. It's fundamental.
19 This whole line of questioning about people
20 are supposed to have known something just as a result
21 of sending some letters to -- to local authorities just
22 has no place in this case. It's irrelevant.
23 MR. EASTERBY: Your Honor, may I be heard on
24 this --
25 THE COURT: No.

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1 MR. EASTERBY: -- please. I already asked --


2 THE COURT: The short answer is no,
3 Mr. Easterby.
4 Mr. Levine.
5 MR. LEVINE: Yes, Your Honor.
6 So, again, Your Honor, it goes to notice,
7 which includes, in this instance, reasonable
8 investment-backed expectations as well as there's been
9 evidence presented by the plaintiffs saying that they
10 were not informed by the Corps. This goes to notice
11 that, consistent with Mr. Long's testimony, the Corps
12 has been providing notice to the public about the
13 operations of the dams for over 30 years as well as
14 publicly available information that -- as to the same.
15 THE COURT: Mr. Charest.
16 MR. CHAREST: There's no evidence that any of
17 these plaintiffs sought any of these -- these
18 information. And, further, it doesn't matter, sir. I
19 mean, the fact that the Corps may or may not have said
20 anything does not affect the ownership rights of the
21 people and their property.
22 THE COURT: That's true. Would you consult
23 with Mr. Easterby.
24 MR. CHAREST: Yes, sir.
25 THE COURT: Let's see.

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1 MR. CHAREST: Thank you.


2 In Preseault the court cited Loretto, which I
3 think the Court is familiar with, which says,
4 "Ironically, the decision that definitely establish the
5 rights of a property owner to compensation whenever
6 there is a physical taking" -- the notion of the
7 subject of awareness is a relatively minor one. And
8 the court went on to 'affirm the traditional rule that
9 a permanent physical occupation of property is a
10 taking, and in such case the property owner entertains
11 the historically rooted expectation of compensation.'"
12 (As read:) "The government reverses its
13 order in this case as if read, 'If the property owner
14 has an expectation of compensation, then a permanent
15 physical occupation of property is a taking.' In
16 effect, the government argues Loretto stands for the
17 proposition that an owner's property rights are defined
18 by what the owner might (should?) have believed the law
19 to be at the time he or she acquired the property, and
20 that makes the belief so."
21 But the government's reading reverses the
22 sentence and stands the law on its head. "They read it
23 to say an owner's subjective expectation of keeping or
24 losing her property under various possible scenarios
25 defines for that owner the extent of title."

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1 The reverse is true. Subjective awareness


2 does not define title.
3 THE COURT: The Court has addressed all these
4 legal issues in the recent decision in a case called
5 Caquelin.
6 Mr. Levine, is this a predicate for a legal
7 argument along the lines that you have just stated?
8 MR. LEVINE: Your Honor, if I may.
9 Reasonable investment-backed expectations is an
10 objective standard. Additionally, the Houston
11 Chronicle, the article that this comes from, is the
12 paper of record here in the Houston area. They were
13 saying maybe, you know, the plaintiffs saw it. I don't
14 know if they did or not, but --
15 THE COURT: The question is --
16 MR. LEVINE: -- this information --
17 THE COURT: -- it doesn't make any difference
18 whether the plaintiff saw it or not. The Court --
19 well, I haven't read or looked at the article.
20 May I just have a moment to see the article?
21 MR. LEVINE: Certainly, Your Honor. If you
22 would like, I can draw your attention --
23 THE COURT: Well, just let me see it.
24 MR. LEVINE: -- to the parts that we are
25 concerned with.

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1 THE COURT: This is from Westlaw; is that


2 correct? Could we have some assistance with the
3 monitor, please.
4 MR. LEVINE: Charles.
5 MR. CHAREST: If I could respond to the
6 government's position, sir, about whether this goes to
7 reasonable investment-backed expectations. Preseault,
8 the court says, and I quote, "The government's attempt
9 to re the concept of 'reasonable expectations' as used
10 in regulatory takings law into the analysis of a
11 physical occupation case would undermine, if not
12 eviscerate, long-recognized understandings regard to
13 protection of property rights; it is rejected
14 categorically," according to the federal circuit.
15 MR. SHAPIRO: Your Honor, if I --
16 THE COURT: Just a moment. I am not going to
17 propose anybody from making legal arguments in this
18 case. On the other hand, the Court is very reluctant
19 to admit a newspaper article along these lines. I'll
20 admit DX886 for a limited purpose, almost as a
21 demonstrative.
22 MR. LEVINE: Thank you, Your Honor.
23 THE COURT: It will be in the record but not
24 evidence.
25 MR. CHAREST: Fair enough. Thank you, sir.

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1 MR. LEVINE: Thank you, Your Honor.


2 If we could turn to page 5 of 7 of that
3 document, please. And if you could highlight the third
4 and fourth paragraphs from the bottom, please,
5 beginning with "several experts." One more paragraph
6 down. Thank you.
7 Q. (By Mr. Levine) Mr. Long, could you read
8 what's on the monitor, please.
9 A. Yes. "Several experts" --
10 MR. CHAREST: Object. I mean, the very
11 discussion we had was admitting this for limited
12 purpose, and now the witness is going to read into the
13 record a statement by a third party as if it's true. I
14 mean, it's -- it's hearsay, it's irrelevant, and he's
15 not a sponsor for this type of information. He doesn't
16 know this.
17 THE COURT: Sustained.
18 MR. LEVINE: You can keep that up, please.
19 THE COURT: Mr. Levine, you may ask
20 substantive questions of Mr. Long along the lines of
21 the article, but you may not refer to the article as
22 evidence in the case.
23 MR. LEVINE: Can you highlight those again,
24 please.
25 Q. (By Mr. Levine) Mr. Long, earlier you

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1 described Hurricane Allison and its impact or not on


2 Addicks and Barker reservoirs; correct?
3 A. Yes.
4 Q. Okay. Thank you.
5 And are you familiar with a study in 1996 by
6 the Harris County Flood Control District concerning the
7 Addicks and Barker reservoirs?
8 MR. CHAREST: Objection. Leading.
9 THE COURT: Overruled.
10 THE WITNESS: Yes.
11 Q. (By Mr. Levine) What was that study?
12 A. That was a study to see if there were ways to
13 convey water faster from Addicks and Barker reservoir
14 via a tunnel that was being considered under
15 Interstate 10 at the time that Interstate 10 was being
16 widened.
17 Q. Do you happen to recall the name of that
18 study?
19 A. I do not recall the actual name of it.
20 Q. How would you refer to that study?
21 A. It was a study done by flood control to look
22 at the feasibility of placing a tunnel under I-10.
23 Q. Is that also known as the Katy Freeway?
24 A. The Katy Freeway, yes.
25 Q. And did that study consider whether or not

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1 homes could be inside the reservoirs in a large enough


2 storm event?
3 A. It did address that homes could be inside the
4 maximum storage area in a large enough event.
5 Q. Okay. Thank you.
6 You can take that down. If we could pull up
7 Upstream 1597.
8 MR. LEVINE: And, Your Honor, this document
9 was admitted earlier.
10 Okay. If we could turn to the slide
11 Bates-stamped USACE75519.
12 Q. (By Mr. Levine) Mr. Long, do you recognize
13 this slide?
14 A. Yes, I do.
15 Q. Okay. What are we looking at in this slide?
16 A. This is a slide made of the Addicks area in
17 1948 -- that would be the community of Addicks --
18 showing Barker Reservoir in the distance and Addicks
19 Dam toward the bottom of the photo.
20 Q. And why did the Corps of Engineers include
21 this slide in this presentation?
22 A. The purpose of this slide was to demonstrate
23 the limited amount of development downstream of Addicks
24 and Barker dams at the time the projects were
25 constructed.

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1 Q. Okay. And if we could turn to the next page


2 ending in 520.
3 And what's this slide?
4 A. This is another photograph of the area around
5 Addicks and Barker. This time, showing Addicks Dam
6 cutting across the middle of the slide, with Barker Dam
7 in the distance, again showing limited development in
8 the area.
9 Q. Okay. And the next slide, 521?
10 A. This slide shows Buffalo Bayou downstream of
11 Addicks and Barker dam, where an improved channel has
12 been constructed. And, again, it shows the limited
13 development in this area.
14 Q. Okay. And if we could go to Slide 528,
15 please.
16 Mr. Long, what is this slide?
17 A. This slide is a photograph of Addicks
18 Reservoir made fairly recently that is shadowed with
19 a -- a blue tint showing the 100 percent -- 100-year
20 flood or the 1 percent flood possibility for Addicks
21 Reservoir.
22 Q. And was this slide presentation from
23 June 9th, 2009?
24 A. Yes, it was.
25 Q. Okay. All right. What was the purpose of

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1 including this slide in the presentation?


2 A. To demonstrate what a 100-year event -- the
3 impact of a 100-year event on the reservoir would be.
4 Q. Okay. And if we can turn to the next slide,
5 529, please.
6 A. Okay.
7 Q. What's this slide Mr. Long?
8 A. 529, this is a slide showing the boundaries
9 of government-owned land and indicating that the
10 property line is at 103.1 feet, NAVD 1988.
11 Q. NAVD 1998?
12 A. 1998 [sic].
13 Q. Thank you.
14 And is there a red line surrounding Addicks
15 Reservoir?
16 A. Yes, there is.
17 Q. What does that red line indicate?
18 A. It indicates the property boundaries for
19 Addicks Reservoir.
20 Q. Thank you.
21 If we could turn to the next slide ending in
22 530.
23 What is Slide 530, Mr. Long?
24 A. Okay. This is another slide of Addicks
25 Reservoir with a blue shading, with a -- the blue

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1 shading indicates a pool of 103.4, indicating that the


2 first home would be inundated at that point.
3 Q. The first home outside of Addicks Reservoir?
4 A. The first home beyond the limits of
5 government-owned land of Addicks Reservoir.
6 Q. Why did the Corps included this slide in the
7 presentation?
8 MR. CHAREST: Objection, Your Honor. This
9 goes back to the reasonable investment-backed
10 expectation, and I have to ask for a running objection
11 on the relevance of this type of information which we
12 think, under Preseault, isn't relevant.
13 THE COURT: I understand the objection, but
14 it's overruled.
15 MR. CHAREST: Can I get that we have a
16 running objection so we don't have any kind of waiver
17 issues?
18 THE COURT: Yes.
19 MR. CHAREST: Thank you, sir.
20 THE WITNESS: Could you ask the question
21 again.
22 Q. (By Mr. Levine) Yes. What was the purpose
23 of including this slide in the presentation?
24 A. Again, to show with the blue -- blue
25 highlighting on the slides show impacts of a large pool

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1 on Addicks Reservoir and indicate where the first home


2 would be flooded beyond the government-owned limits at
3 103.4 feet.
4 Q. Thank you.
5 If we could turn to the next slide,
6 Slide 531.
7 What are we looking at in Slide 531?
8 A. Again, a slide of Addicks Reservoir
9 highlighted in blue indicating the extent of a pool
10 that would occur to the point that it would begin
11 flowing around the north end of Addicks Dam at
12 108.0 feet NAVD 1988.
13 Q. If we could turn to the next slide.
14 THE COURT: Just a moment.
15 MR. LEVINE: I'm sorry.
16 THE COURT: I have a question, if I may ask
17 it.
18 MR. LEVINE: Certainly, Your Honor.
19 THE COURT: Mr. Long, you indicated that the
20 flow edge would occur in the spillway around the north
21 end.
22 Is there a difference in the elevation of the
23 spillway at the north end and the, I think, western
24 end?
25 THE WITNESS: Yes, sir. Due to subsidence,

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1 the north end of the dam is at 108 while the west end
2 of the dam is at 112. They used to be at the same
3 elevation. It wouldn't flow over the spillway; it
4 flowed around the end of the spillway.
5 THE COURT: That's right. I realized, when I
6 was speaking, that that's where the point where the
7 concrete -- I think of it as concrete, but it's not
8 poured concrete -- meets the ground level, the natural
9 ground level. Is that correct?
10 THE WITNESS: Yes, sir.
11 THE COURT: All right. Thank you.
12 MR. LEVINE: Since Your Honor brought that
13 up, I'm going to ask Mr. Long a couple of questions
14 related to Your Honor's question.
15 THE COURT: Yes.
16 Q. (By Mr. Levine) Mr. Long, thinking to the
17 Harvey storm, did you witness water flowing around the
18 end of the spillway, the northeastern spillway of
19 Addicks Dam during Harvey?
20 A. Yes, I did.
21 Q. Okay. And where did you witness that water
22 flowing?
23 A. It was occurring immediately at the end of
24 the dam and on -- and beyond that end in a sheet
25 flow-type flood around the broad area around the north

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1 end of the dam.


2 Q. Okay. And were there two locations that you
3 witnessed that water flowing?
4 A. Yes. I observed it flowing right at the very
5 end of the dam, between the end and adjacent building
6 to the dam, and then on the other side of the building
7 in the vicinity of Tanner Road.
8 Q. Okay. And do you know what that flow was in
9 cubic feet per second?
10 A. The flow that I heard discussed was
11 approximately 2,000 cubic feet per second.
12 Q. Was there a difference in the flow on Tanner
13 Road versus the end of the spill -- the end -- the
14 area -- excuse me.
15 There was a difference in the flow on Tanner
16 Road versus the area between the end of the spillway
17 and the building?
18 A. Yes. The volume going around the end of the
19 dam beyond the building or in the Tanner Road area was
20 much greater than that going around the end of the dam
21 between the end of the dam and the building.
22 Q. Thank you.
23 Now, if we could go back to the document on
24 the monitor. And I believe I had just asked you about
25 Slide 531. If we could go to the next slide, please,

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1 532.
2 Mr. Long, what are we looked at in Slide 532?
3 A. Okay. We are looking at another flood event
4 superimposed over the photo of Addicks Reservoir with
5 the blue highlighting, that it would -- the amount of
6 area inundation beyond government property is increased
7 there to represent a pool elevation of 112 feet, NAVD
8 1988.
9 Q. You used the term "superimposed." This image
10 that we're looking at, that's not from an actual storm
11 event, is it?
12 A. At the time this slide deck was put together,
13 we had not had a pool that exceeded the limits of
14 government-owned land.
15 Q. Okay. So this was a simulated storm centered
16 over the watershed?
17 A. Yes.
18 Q. Okay. And was that true of the other images
19 we have looked at just now?
20 A. Yes.
21 Q. Okay. Thank you.
22 And then, if we could move forward in the
23 slide presentation. And if you could just look quickly
24 at Slides 536 through 539.
25 Are those similar slides but addressing

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1 Barker Reservoir?
2 A. Yes, they are.
3 Q. And were those used for a similar purpose but
4 to explain for Barker Reservoir?
5 A. Yes, they were.
6 Q. If we could turn to Slide 540, please.
7 Mr. Long, what is Slide 540?
8 A. This is a chart that we assembled quite a few
9 years ago and updated periodically showing the top ten
10 pools for both Addicks and Barker Reservoir
11 demonstrating the elevation of those pools as well as
12 the number of acre-feet stored at the time those pools
13 occurred.
14 Q. Okay. And did you notice a trend over time
15 related to pool size?
16 A. Yes. We were seeing more frequent pools
17 that's demonstrated by the dates of the pools that are
18 occurred there and the number of pools that have
19 occurred since 1990 demonstrating the increased
20 frequency of pools occurring.
21 Q. Okay. And have you presented similar slides
22 in other presentations with updated information as
23 pools changed over time?
24 A. Yes. This slide has been updated to include
25 the -- what's called the Tax Day Flood, which became a

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1 new pool of record at that time, and then Hurricane


2 Harvey, which became a new pool of record above the Tax
3 Day Flood.
4 Q. If we could turn to the next slide, please,
5 541.
6 Do you see this slide, Mr. Long?
7 A. Yes, I do.
8 Q. Okay. What's the purpose -- or what are we
9 seeing in this slide?
10 A. This slide, we wanted to highlight some
11 points that we felt like we needed to get across to the
12 receiver of this message, whoever the presentation was
13 being given to, to indicate that the capability -- the
14 capability of putting development above the reservoir
15 under water was there. In most situations, it would
16 require a major storm event and that storms have
17 occurred in the area that would have caused flooding of
18 government-owned land -- flooding off of
19 government-owned land above Addicks and Barker
20 reservoirs.
21 Q. If we could turn to the next slide, please,
22 542.
23 What's the purpose of including this slide?
24 A. The purpose of including this slide is to
25 show that past storms have occurred in the area. And

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1 this slide specifically addresses Tropical Storm


2 Allison. And so it opens a discussion on the impacts
3 of Tropical Storm Allison on the reservoirs.
4 Q. So if we could turn to the next page,
5 Slide 543.
6 What are we looking at in Slide 543?
7 A. We're looking at blue shading superimposed
8 over an aerial of Addicks Reservoir indicating the
9 extent of a flood pool that would occur behind Barker
10 Dam without overflow from the Cypress Creek drainage.
11 Q. I'm sorry. Which dam are we looking at?
12 A. Addicks.
13 Q. Thank you.
14 So that's what it would have looked like if
15 Allison were centered over the Addicks watershed?
16 A. That's correct.
17 Q. And if we can turn to Slide 545.
18 What are we looking at in this slide?
19 A. We're looking at a similar slide with blue
20 shading, but the areas -- the increased pool elevation
21 that would occur should overflow occur from the Cypress
22 Creek watershed into the Addicks Reservoir watershed
23 has increased the blue-shaded area of the pool.
24 Q. And that's a pool that would have occurred if
25 Tropical Storm Allison were centered over the Addicks

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1 watershed?
2 A. Yes.
3 Q. And when you say "Cypress Creek overflow,"
4 what do you mean by that?
5 A. We have a fairly unique geographical lay of
6 the land here where it's flat enough in the upper
7 Addicks watershed and where that watershed abuts up
8 against this Cypress Creek watershed that, in extreme
9 rain events, an overflow can occur from the Cypress
10 Creek watershed into the Addicks watershed, increasing
11 the size of that pool that would occur.
12 Q. Thank you. And if we can turn to Slide 547,
13 please.
14 Mr. Long, what are we looking at in
15 Slide 547?
16 A. We're looking at another aerial, this time of
17 Barker Reservoir with blue shading to demonstrate what
18 a pool would look like had Tropical Storm Allison been
19 centered over the Barker Reservoir watershed.
20 Q. Thank you.
21 And if we could turn to Slide 549.
22 Does this slide introduce a similar set of
23 slides but looking at Tropical Storm Claudette?
24 A. Yes, it does.
25 Q. Okay. And so looking at Slide 550 on the

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1 next page, is that similar information for Tropical


2 Storm Claudette over Addicks Reservoir?
3 A. Yes, it is.
4 Q. And if we turn to Slide 552, is that similar
5 information for Barker Reservoir regarding Tropical
6 Storm Claudette?
7 A. Yes, it is.
8 Q. If we could turn to the second-to-last slide,
9 Slide 557. It says "Conclusion" at the top.
10 A. Okay.
11 Q. What message was the Corps delivering with
12 this slide?
13 A. This was to wrap up the presentation. And
14 it's to make sure the public understands that, even
15 though that Addicks and Barker Reservoir has ever
16 impounded water beyond government-owned land, that the
17 potential exists for that to happen, and we know it can
18 happen and probably will happen at some point. And the
19 Corps is looking -- working with local officials to be
20 prepared for the situation.
21 Q. Okay. And what are the impacts that could
22 occur if water leaves government-owned land?
23 A. There would be flooding of homes and
24 businesses as well as infrastructure in the area,
25 depending -- depending on the size of the event.

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1 Q. Okay. If we could introduce Defendants'


2 Exhibit 196. It's Bates-stamped USACEII01821272.
3 Mr. Long, do you recognize this document?
4 A. Yes, I do.
5 Q. And what is it?
6 A. It's a presentation on Addicks Reservoir,
7 similar to the one we just saw, dated June of 19 --
8 2009.
9 Q. Okay. And how are you familiar with it?
10 A. I would have been a part of the
11 presentation -- this presentation and assisting in the
12 assembling of the slides.
13 Q. And is this prepared by the Army Corps of
14 Engineers?
15 A. Yes, it is.
16 Q. And is it a document that's kept in the
17 ordinary course of the Corps' work?
18 A. Yes, it is.
19 MR. LEVINE: Your Honor, I'd move that DX196
20 be admitted into evidence.
21 MR. CHAREST: Objection. It's hearsay, sir,
22 hearsay, all of it.
23 THE COURT: Is this -- let me ask -- may I
24 ask a question of Mr. Long?
25 MR. LEVINE: Certainly, Your Honor.

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1 THE COURT: Mr. Long, you said this relates


2 to specifically Addicks; is that correct?
3 THE WITNESS: Yes.
4 THE COURT: All right. Why is that? Why
5 wasn't Barker included, if you know?
6 THE WITNESS: Depending on who the
7 presentation was given to, it may have been geared a
8 little differently. If it was given to a governmental
9 entity, for instance, that only had interest in Addicks
10 Reservoir versus having interest in both Addicks and
11 Barker.
12 THE COURT: That was part of my next question
13 as to whom was this information -- the information in
14 the, I guess, presentation given.
15 THE WITNESS: Specifically, I do not recall,
16 sir.
17 THE COURT: Mr. Levine.
18 MR. LEVINE: Yes, Your Honor.
19 THE COURT: The Court will admit DX196.
20 MR. LEVINE: Thank you.
21 (Whereupon, Defendants' Exhibit 196 was
22 admitted into evidence.)
23 Q (By Mr. Levine) Mr. Long, was the purpose of
24 this presentation similar to the one that we just
25 discussed?

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1 A. Yes, it was.
2 Q. Okay. Does this presentation contain similar
3 slides for Addicks Reservoir that we looked at in the
4 previous one?
5 A. Yes, it does.
6 Q. Does it give similar information concerning
7 what could have happened with Tropical Storms Allison
8 and Claudette centered over the Addicks watershed?
9 THE COURT: Mr. Charest.
10 MR. CHAREST: This is the tenth, I think,
11 leading question. This is the tenth leading question
12 in a row I counted.
13 THE COURT: Sustained.
14 Q (By Mr. Levine) Does this presentation
15 include information similar to the previous one
16 regarding Tropical Storm Allison and Tropical Storm
17 Claudette?
18 MR. CHAREST: Objection. That's the 11th.
19 THE COURT: Overruled.
20 THE WITNESS: Yes, it does.
21 Q (By Mr. Levine) If you could turn to the
22 slide ending in 300, please.
23 Mr. Long, what was the purpose of including
24 this slide in the presentation?
25 A. This would -- this slide would open up

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1 discussions specifically addressing Harris County's


2 response to a large flood pool behind Addicks Dam.
3 Q. And I think you testified to this earlier,
4 but would you guys sometimes make presentations with
5 partner agencies?
6 A. Yes, we would.
7 MR. CHAREST: Objection. I'm sorry to do it,
8 but it's -- Mr. Levine is testifying, and he's just
9 answering yes. It's leading.
10 THE COURT: It was definitely leading.
11 On the other hand, the Court will allow some
12 leading questions as long as it doesn't actually bear
13 on anything but prior testimony in the case.
14 MR. LEVINE: Thank you, Your Honor.
15 Q (By Mr. Levine) If you could turn to the
16 next slide, 301. What was the purpose of including
17 this slide?
18 A. This slide was to carry on with the
19 discussion from the previous slide to discuss Fort Bend
20 County's response in a flood event above the
21 reservoirs.
22 Q. If we could turn to Slide 303, please.
23 THE COURT: May I ask a quick question?
24 MR. LEVINE: Certainly, Your Honor.
25 THE COURT: Why was the slide respecting Fort

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1 Bend County included if this relates only to Addicks


2 Dam?
3 THE WITNESS: These slide decks, depending on
4 where this deck was actually acquired from at the time
5 of gathering this information, would have been
6 exercised or changed depending on who the presentation
7 would have been geared to. So it's very possible that
8 the Fort Bend County slide had not been pulled out of
9 this deck at the time.
10 THE COURT: Thank you.
11 MR. LEVINE: Thank you, Your Honor.
12 Q (By Mr. Levine) Looking at Slide 303,
13 please. Mr. Long, what is this slide?
14 A. The purpose of this slide was to open up a
15 discussion with the -- the audience to the presentation
16 to make sure that they realized the importance of being
17 prepared for an event should it happen, knowing where
18 they would go, asking them if they did have flood
19 insurance, to encourage them to get flood insurance,
20 and asking them how they would be prepared for such an
21 event.
22 Q. And if we could turn to Slide 304, please.
23 What was the take-home message from this
24 presentation?
25 A. Again, this was to wrap up the discussion,

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1 this time centering on Addicks Reservoir -- excuse


2 me -- centering on Addicks Reservoir. And, like we
3 discussed earlier, it indicates that, even though we've
4 never had an event that has exceeded the limits of
5 government-owned land, we see the potential for it
6 occurring, that we know it can happen, that we know it
7 will happen at some point, and that the Corps is
8 working with local officials to be prepared for the
9 situation.
10 Q. And what could the impacts be if water went
11 beyond the limits of government-owned land in a large
12 enough storm?
13 A. We would have water impounded to elevations
14 that could flood homes, businesses, and public
15 infrastructure.
16 Q. Thank you.
17 If we could turn to DX198, please. It's
18 Bates-stamped USACEII01394792.
19 Mr. Long, do you recognize this document?
20 A. I do.
21 Q. What is it?
22 A. This is a similar presentation to the Addicks
23 Reservoir presentation that we just saw. And this was
24 more geared specifically to interests behind Barker
25 Reservoir.

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1 Q. Okay. And what was the date of this


2 presentation?
3 A. June 2009.
4 Q. And how were you familiar with it?
5 A. I either participated and/or helped assemble
6 this slide deck for this presentation.
7 Q. Is it a Corps' document?
8 A. Yes, it is.
9 Q. Is this a document that's kept in the
10 ordinary course of the Corps' work?
11 A. Yes, it is.
12 MR. LEVINE: Your Honor, I'd move that DX198
13 be admitted into evidence.
14 MR. CHAREST: I have the same hearsay
15 objection, Your Honor.
16 THE COURT: Say again, Mr. Charest.
17 MR. CHAREST: It's hearsay. Again, this
18 is -- the statement is being offered for the truth.
19 It's -- it's hearsay.
20 THE COURT: That's true. But, on the other
21 hand, Mr. Long has just testified that he helped
22 assemble it.
23 MR. CHAREST: Doesn't change my objection,
24 sir.
25 THE COURT: I understand that. But, on the

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1 other hand, it's -- it's -- in part -- I don't know.


2 We can find out what part is his work, but it's
3 partially his work.
4 Admitted.
5 (Whereupon, Defendants' Exhibit 198 was
6 admitted into evidence.)
7 Q. (By Mr. Levine) Okay. Mr. Long, does this
8 contain the same basic information as the previous
9 slide presentations but geared towards Barker?
10 A. Yes, it does.
11 Q. Did this meeting information have a similar
12 purpose?
13 A. Yes, it did.
14 Q. Does it contain similar messaging?
15 A. Yes, it does.
16 Q. Does it also contain inundation maps for
17 Tropical Storm Allison and Tropical Storm Claudette?
18 A. Yes, it does.
19 MR. LEVINE: And if you can shrink that down,
20 please, Charles.
21 If we could go to slide ending -- Slide 22,
22 the one ending in Bates stamp 813. And if you could
23 blow up, actually, the whole thing, including the notes
24 below.
25 Q (By Mr. Levine) Mr. Long, what are we

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1 looking at in this slide?


2 A. This is a slide of Barker Reservoir with blue
3 shading superimposed over it with a -- and the blue
4 superimposed area is the Tropical Storm Allison, what
5 it would look like if it was over the Addicks -- Barker
6 Reservoir watershed.
7 Q. And I see there's notes below the slide. Why
8 are there notes below the slide?
9 A. To make sure that the community would know
10 what the blue shading was.
11 MR. CHAREST: Objection, Your Honor. This --
12 lacks foundation that this was actually ever delivered
13 to anyone in the community. He can talk about why he
14 put the notes there or whoever the Corps put the notes
15 there. There's no information to say there was any
16 information actually delivered to any human being.
17 THE COURT: That's a speaking objection.
18 But, on the other hand, it's one that you can use as a
19 basis for cross-examination.
20 MR. CHAREST: I certainly will.
21 THE COURT: Thank you.
22 Q (By Mr. Levine) Mr. Long, when you were
23 talking about the technology you would use to make
24 presentations, you said you used something called
25 PowerPoint; correct?

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1 A. Yes.
2 Q. Does PowerPoint have a notes feature that
3 allows the presenter to have notes related to
4 particular slides?
5 A. Yes, it does.
6 Q. Thank you.
7 All right. Mr. Long, I want you to think
8 back to early 2010.
9 You can take that slide down.
10 Think back to early 2010, please. What was
11 going on with the Addicks and Barker dams at that time?
12 A. Addicks and Barker dams had just gone through
13 a review by dam safety personnel. And it had been
14 determined that there was some issues with the dams
15 that needed to be conveyed to the -- to the public
16 concerning those dam safety issues.
17 And, as a part of our outreach program, we
18 held a series of public meetings upstream and
19 downstream of the projects to educate and inform the
20 public of these dam safety issues.
21 Q. And what was the general message to the
22 Houston community at large?
23 A. The general message was that, even though
24 there were issues with the dams, the issues were being
25 addressed and that there was no immediate risk of dam

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1 failure.
2 Q. And was there an additional message to the
3 upstream community?
4 A. We took this opportunity to address the
5 upstream communities to specifically address the
6 potential for flooding of areas upstream of government
7 property in severe rain events.
8 MR. LEVINE: I'd like to introduce Joint
9 Exhibit 94, Your Honor. This document is also already
10 in evidence.
11 Thank you, Your Honor.
12 Q (By Mr. Levine) Mr. Long, do you recognize
13 this document?
14 A. Yes, I do.
15 Q. What is it?
16 A. This is a summary report developed by the
17 Corps' contractor who helped us develop the -- the
18 meetings. And this specifically addressed the upstream
19 meetings that we had above Addicks and Barker
20 reservoirs.
21 Q. How are you familiar with this document?
22 A. I was part of the meetings. And this
23 document is located in our office.
24 Q. Okay. If you could turn to the
25 second-to-last page of the document, please. It's the

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1 one ending in -- or with the Bates stamp USACE594487.


2 If you could look to the second-to-last
3 paragraph.
4 A. Okay.
5 Q. What was the message in the news release
6 about the public meetings?
7 A. We wanted to make sure that the public
8 realized, and it was stressed in this news release,
9 that the -- the meetings would also address the
10 potential for upstream flooding above Addicks and
11 Barker reservoirs in the event of severe rain events.
12 Q. Mr. Long, do you recall how the Corps
13 advertised these meetings to the public?
14 A. These meetings were advertised in various
15 ways. We had direct mailing that went to homeowners.
16 We had yard signs that were put out at intersections
17 around Addicks and Barker reservoirs. And then we had
18 press releases such as these. And we also placed legal
19 notices in the newspaper.
20 Q. Okay. So if you could turn with me to
21 Appendix A1 back towards the beginning of the document
22 with the Bates stamp ending in 374.
23 A. Ending in 374?
24 Q. Yes. Look at the USACE Bates stamp, the
25 smaller one, the upper one.

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1 A. Okay.
2 Okay.
3 Q. Okay. And is this the appendix for the
4 newspaper notices you were just talking about?
5 A. Yes, it is.
6 Q. And if you could turn to the next page.
7 What is that on the next page, 375?
8 A. This is a copy of the newspaper notice that
9 went to various papers.
10 Q. Okay. And were these newspaper notices
11 delivered in multiple languages?
12 A. Yes, they were.
13 Q. How come?
14 How come?
15 A. How come? Because we have a very diverse
16 community in and around Addicks and Barker reservoir.
17 And we wanted to reach the largest population possible.
18 Q. If we could turn to page 378, what are we
19 looking at on page 378, Mr. Long?
20 A. We're looking at a listing of papers that
21 these legal notices were placed in.
22 Q. Does it also include the date of their
23 publication?
24 A. Yes, it does. Those dates range from
25 February 12th to February 18th of 2010.

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1 Q. Thank you.
2 If we could turn to Appendix A2 a couple
3 pages later with the Bates stamp ending 386.
4 Is this the appendix that concerns the
5 mailers that you were referring to earlier?
6 A. Yes, it is.
7 Q. Okay. If you could turn a few pages back --
8 or forward to the pages 391 and 392, please.
9 Yep.
10 A. Okay.
11 Q. Mr. Long, what are we looking at in 391 and
12 392?
13 A. We're looking at the direct mail postcards
14 that were sent out to homeowners in the area advising
15 them of the meetings.
16 Q. Okay. And is that also in multiple
17 languages?
18 A. Yes, it is.
19 Q. Is that for the same reason?
20 A. Yes, it is.
21 Q. And if we could turn back a few pages to the
22 Bates stamp ending in 370.
23 Mr. Long, do you know approximately how many
24 notices were -- like that type were sent out to the
25 community?

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1 A. We sent out in excess of 1600 mailers.


2 Q. Thank you.
3 Mr. Long, did you attend the upstream Addicks
4 and Barker meetings in 2010?
5 A. Yes, I did.
6 Q. And what was your role in those meetings?
7 A. In the upstream Addicks meeting, my role was
8 to serve on a panel for the question-and-answer
9 session, along with other Corps individuals and Harris
10 county Flood Control individuals, to address questions
11 that the audience may have had concerning the
12 operations and -- of Addicks and Barker reservoirs.
13 Q. Do you recall discussions of the potential
14 for upstream flooding in those meetings?
15 A. Yes, there was.
16 Q. If you could also turn to page ending in 393.
17 A. Okay.
18 Q. On this page and about 20 pages thereafter,
19 what are we looking at on those pages?
20 A. We're looking at a list of addresses for the
21 homes that we sent the direct mailers to in the areas
22 above Addicks and Barker reservoirs.
23 Q. Okay. And if we can turn to the Bates stamp
24 418.
25 A. Okay.

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1 Q. Do you recognize this, Mr. Long?


2 A. Yes, I do.
3 Q. What is it?
4 A. This is a PowerPoint presentation that was
5 used during the public meetings to lead to the
6 discussion on Addicks and Barker reservoir and used to
7 inform the audience on the history, operation, and
8 operations of the projects.
9 Q. Okay. And is this similar to other
10 presentations we've discussed today?
11 A. Yes, it is.
12 Q. Okay. And if you could -- if you could turn
13 to Appendix B3 -- actually, excuse me -- page ending in
14 434.
15 A. Okay.
16 Q. Mr. Long, what's the purpose of including
17 this slide?
18 A. This slide shows an image of Addicks
19 Reservoir, with various pool elevations highlighted
20 depending on the frequency of an event.
21 Q. Okay. And was this discussed at those
22 upstream meetings in 2010?
23 A. Yes, it was.
24 Q. If you could turn to the next page.
25 What are we looking at on the next page?

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1 A. We're looking at a similar slide for Barker


2 Reservoir, again color-coded to demonstrate the
3 frequency of various pool events and their impacts on
4 the project.
5 Q. And was that also discussed at those 2010
6 meetings?
7 A. Yes, it was.
8 Q. Could you turn with me to Appendix B3, the
9 page ending in 474.
10 Mr. Long, is this the appendix that deals
11 with the yard signs you discussed earlier?
12 A. Yes, it is.
13 Q. Okay. And if you could turn with me to
14 pages 479 and 480.
15 Mr. Long, what are we looking at on pages 479
16 and 480?
17 A. These are the locations where the yard signs
18 were posted in the areas upstream of Addicks and Barker
19 Reservoir at major intersections in those areas.
20 Q. Okay. If we could turn to 481.
21 Mr. Long, what are we looking at in 481?
22 A. This is the image of the yard sign that was
23 placed above Addicks Reservoir advertising the meeting
24 at the Mayde Creek Junior High School.
25 Q. And the next page, please, 482.

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1 A. This is a yard sign that was placed above


2 Barker Reservoir advertising the meeting at Pattison
3 Elementary School.
4 Q. Thank you.
5 Thank you, Charles. You can take that down.
6 I'd like to introduce DX238.
7 MR. LEVINE: May I proceed, Your Honor?
8 THE COURT: Yes.
9 MR. LEVINE: Thank you.
10 Q (By Mr. Levine) Mr. Long, do you recognize
11 this document?
12 A. Yes. This is a PowerPoint presentation that
13 I delivered on August 9th, 2011, to the Katy Sunrise
14 Rotary Club.
15 Q. Is it a Corps document?
16 A. Yes, it is.
17 Q. Is this a document that's kept in the
18 ordinary course of the Corps' work?
19 A. Yes, it is.
20 MR. LEVINE: Your Honor, I'd move that DX238
21 be admitted into evidence.
22 MR. CHAREST: If it's being offered for the
23 truth of the matter, I still --
24 THE COURT: I'm sorry. You have to speak up.
25 MR. CHAREST: If it's being offered for the

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1 truth of the matter asserted, it's still hearsay


2 despite its authenticity, which I don't dispute.
3 THE COURT: Admitted.
4 (Whereupon, Defendants' Exhibit 238 was
5 admitted into evidence.)
6 Q (By Mr. Levine) Mr. Long, does this
7 presentation contain similar information to the -- some
8 of the presentations we've already discussed?
9 A. Yes, it does.
10 Q. If you could turn with me to the page ending
11 in Bates stamp 794, please.
12 Mr. Long, what are we looking at on
13 Slide 794?
14 A. We're looking at an image of Addicks
15 Reservoir, again color-coded to indicate the effects of
16 rainfall events on the Addicks watershed to the pool
17 area as it relates to Addicks Reservoir.
18 Q. Okay. And what's the title of that slide?
19 A. "Addicks Flood Frequency Map."
20 Q. Thank you.
21 If we could turn two slides forward to 796.
22 Mr. Long, what are we looking at in 796?
23 A. This is a Barker flood frequency map, again
24 color-coded to indicate pool frequencies of rainfall
25 events over the Barker watershed and how they would

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1 relate to the pools generated from those flood events.


2 Q. Okay. If we could -- thank you.
3 I'd like to introduce DX304.
4 Charles, if you could lower that a little
5 bit. Thank you.
6 Mr. Long, do you recognize this document?
7 A. Yes, I do.
8 Q. What is it?
9 A. This was a presentation that was done by
10 other personnel in the Addicks field office,
11 Mr. Mackintosh and Captain Ciliske to a -- Eagle's
12 Trace Retirement Community, again addressing the
13 purpose, history, and operations of Addicks and Barker
14 reservoirs. This one occurred in -- on June 5th of
15 2017.
16 Q. And how were you familiar with it?
17 A. It was -- the presentation was derived from
18 previous PowerPoint presentations that I helped
19 assemble.
20 Q. Is this a Corps document?
21 A. Yes, it is.
22 Q. Is it a document that's kept in the ordinary
23 course of the Corps' work?
24 A. Yes, it is.
25 MR. LEVINE: Your Honor, I'd move that DX304

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1 be admitted into evidence.


2 MR. CHAREST: Your Honor, object to
3 relevance. This is a downstream community, Eagle's
4 Trace.
5 THE COURT: Mr. Levine?
6 MR. LEVINE: May I make a proffer, Your
7 Honor?
8 THE COURT: I'm sorry?
9 MR. LEVINE: I'd like to show similar slides
10 to some slides we've already seen that address upstream
11 areas.
12 THE COURT: Well, we don't have any basis to
13 know what the Eagle's Trace retirement community is or
14 what's going on in this presentation.
15 MR. LEVINE: Would you like me to ask some
16 more foundational questions?
17 THE COURT: Yes, please.
18 MR. LEVINE: Certainly, Your Honor.
19 Q. (By Mr. Levine) Mr. Long do you know what
20 Eagle's Trace retirement community is?
21 A. The Eagle's Trace retirement community is a
22 facility located along Highway 6 a little bit south of
23 Buffalo Bayou on the downstream side of the dam. These
24 individuals that live in this community have direct
25 view of Barker Dam and the construction that's going on

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1 at this time at Barker Dam. And so they had a


2 heightened interest on the operations, history, and
3 purpose of the project.
4 THE COURT: Mr. Charest.
5 MR. CHAREST: Same objection, Your Honor.
6 There's no evidence that anyone upstream was attending
7 these meetings. I think it's irrelevant, sir.
8 THE COURT: Mr. Levine.
9 Q. (By Mr. Levine) Mr. Long, does this
10 presentation contain slides similar to those we've seen
11 for upstream community meetings?
12 MR. CHAREST: Your Honor, we're still dealing
13 with the admissibility of it, not the content of it.
14 THE COURT: That's true.
15 MR. LEVINE: Your Honor, I was trying to ask
16 a foundational question --
17 THE COURT: Yes, please.
18 MR. LEVINE: -- that went to the information
19 that's contained in the presentation.
20 THE COURT: No, I understand that.
21 MR. CHAREST: The issues around the relevance
22 pertain to the recipient of the information, which he
23 wasn't there, he doesn't know, and it's downstream.
24 That's our objection.
25 THE COURT: Mr. Levine, how close is this

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1 retirement community to the Barker Dam?


2 Q. (By Mr. Levine) Mr. Long, how close is this
3 retirement community to Barker Dam?
4 A. The front gate of that community is probably
5 just 200 yards from the face of Barker Dam.
6 THE COURT: Are you talking about a community
7 located on the south side of the west run of the
8 embankment for the Barker Dam?
9 THE WITNESS: South side of the west run?
10 No. We're talking about Highway 6 parallels the main
11 embankment for Barker Dam, and this community is
12 located approximately a quarter mile to a half mile
13 south of Buffalo Bayou that would be definitely
14 impacted should a event occur with the dam impacting
15 its stability.
16 THE COURT: Where does this community -- or
17 where is it located respecting the control structure
18 for Barker Dam?
19 THE WITNESS: From the upper stories of this
20 facility, they could probably see the construction of
21 Barker Dam.
22 THE COURT: The new control.
23 THE WITNESS: The new construction going on
24 at Barker Dam and the old control facility at Barker
25 Dam. So it's in very close proximity to that

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1 community.
2 MR. CHAREST: It's on the downstream side of
3 the dam is what he's trying to tell you, sir.
4 THE COURT: It is, but on the other hand,
5 we'll admit it. It is of limited relevance to the
6 upstream residents.
7 MR. LEVINE: Thank you, Your Honor.
8 MR. CHAREST: Fair enough.
9 (Whereupon, Defendants' Exhibit 304 was
10 admitted into evidence.)
11 Q. (By Mr. Levine) Mr. Long, looking at the
12 slide ending in 014.
13 A. Okay.
14 Q. What are we looking at in Slide 014?
15 A. We're looking at a slide of Addicks
16 Reservoir, similar to the slides we saw in previous
17 presentations. It's color-coded to show various
18 impacts to the pooling area that would occur from
19 different rain events with notes below that.
20 Q. Okay. And if we could turn to 018.
21 A. This is a similar slide for Barker Reservoir,
22 again, color-coded to indicate those pool areas from
23 different various rain events that may occur on the
24 watershed above Barker Reservoir.
25 Q. Thank you, Mr. Long.

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1 MR. LEVINE: Your Honor, may I confer with


2 counsel for just a moment, please?
3 THE COURT: Yeah.
4 MR. LEVINE: Thank you, Your Honor.
5 Could we pull up PX1812, please.
6 Q. (By Mr. Levine) Mr. Long, do you recall
7 being shown this document earlier?
8 A. Yes, I do.
9 Q. What is the title of this document?
10 A. "Draft Q&As, Addicks and Barker Reservoirs."
11 Q. Did you draft this?
12 A. I did not.
13 Q. Did you finalize this draft after it was
14 prepared?
15 A. I did not.
16 MR. LEVINE: All right. You can take that
17 down. Thank you.
18 THE COURT: Well, Court has a court question
19 about this document, Mr. Levine.
20 MR. LEVINE: Yes, Your Honor.
21 THE COURT: What was the purpose of this Q&A?
22 THE WITNESS: Okay. This Q&A was done after
23 Harvey, and we were reaching out to the public. And
24 there would be various people reaching out to the
25 public, and we all wanted to make sure we had a clear

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1 understanding of how to address questions that the


2 public may have. It would have been assembled by our
3 public affairs office with input by various individuals
4 related to the project.
5 THE COURT: Did you provide information to
6 the public affairs office that aided them in the
7 preparation of this Q&A?
8 THE WITNESS: Yes, I did.
9 THE COURT: All right. Thank you.
10 Q. (By Mr. Levine) Mr. Long, earlier you
11 discussed a 1996 study prepared by Harris County Flood
12 Control District.
13 Do you recall that?
14 A. Yes, I do.
15 Q. Was that study discussed in a news article in
16 the Houston Chronicle in 2001?
17 A. Yes, I believe so.
18 Q. Okay. Was the possibility of flooding
19 upstream of the reservoirs discussed in that same 2001
20 news article?
21 MR. CHAREST: Your Honor, I --
22 THE WITNESS: Yes.
23 MR. CHAREST: -- have to object to leading
24 again because I'm pretty confident he doesn't remember
25 what the publications of the newspapers were back then

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1 or what their contents were and he's just answering yes


2 to this lawyer.
3 THE COURT: Sustained.
4 Newspapers are fine conveyors of information.
5 On the other hand, they are not percipient witnesses in
6 this particular case. That's the problem.
7 MR. LEVINE: Thank you, Your Honor.
8 Q. (By Mr. Levine) Mr. Long, do you remember
9 testifying earlier about flows around the northeast end
10 of Addicks Dam?
11 A. Yes, I do.
12 Q. Okay. And you estimated 2,000 cubic feet per
13 second, moving north of the end of Addicks during
14 Harvey.
15 Was that 2,000 cfs moving along Tanner Road
16 north of the building?
17 A. It was moving along a wide swath of area from
18 the end of the dam reaching out to Tanner Road and
19 beyond.
20 Q. And you said the flow was less between the
21 end of the dam and the building; is that right?
22 A. Yes, considerably less.
23 Q. Okay. And was that flow, the flow between
24 the end of the dam and the building, less than
25 2,000 cfs?

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1 A. Yes.
2 MR. LEVINE: I pass the witness, Your Honor.
3 THE COURT: Yes.
4 MR. LEVINE: Thank you.
5 THE COURT: May I just note, counsel are
6 having trouble moving around piles of exhibits. The
7 Court is having the same trouble back in the bench. At
8 some point we're going to have a discussion about
9 handling of the exhibits, and I propose that that be
10 done on Wednesday morning.
11 Mr. Shapiro --
12 MR. SHAPIRO: Yes, sir.
13 THE COURT: -- is that all right with you?
14 MR. SHAPIRO: Yes, sir.
15 THE COURT: Mr. Charest, is that all right
16 with you?
17 MR. CHAREST: Whatever you like, sir. Yes,
18 sir.
19 THE COURT: All right. Thank you.
20 MR. LEVINE: Your Honor -- oh, I'm sorry.
21 There was a question --
22 THE COURT: I'm sorry. Go ahead.
23 MR. LEVINE: There was a question about
24 Defendants' Exhibit 933. I'm furnishing a copy to
25 plaintiffs' counsel.

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1 THE COURT: Thank you.


2 MR. LEVINE: Would you and your clerk also
3 like a copy?
4 THE COURT: Yes.
5 MR. LEVINE: Okay. Your Honor, one other
6 point.
7 THE COURT: Yes.
8 MR. LEVINE: And this goes to that Facebook
9 Live video that was shown earlier. We've found the
10 full thing. It's a rather lengthy video, and we'd like
11 to --
12 THE COURT: When you say lengthy, how many
13 minutes?
14 MR. LEVINE: I believe it's well over an
15 hour, sir.
16 THE COURT: Oh, my.
17 MR. LEVINE: In order to produce any sort of
18 clip, it will take us quite some time. I don't believe
19 we can do that today. So I'd just like to ask that,
20 when we finish with Mr. Long, that he not be excused
21 such that, if we need to bring him back for that
22 purpose, we can.
23 THE COURT: Final pretrial order provides for
24 recall in circumstances such as those. So you may do
25 that.

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1 MR. LEVINE: Okay. Thank you.


2 And if I may approach, I can give you copies
3 of that.
4 THE COURT: Yes, please. You may do that.
5 While you're doing that, Ms. Lisa Eddins, who
6 is the scheduler for Chief Judge Rosenthal, is the one
7 who will help us address the volume of exhibits.
8 MR. CHAREST: Can I ask the government to
9 provide us a copy of the full video? It's not been
10 produced as -- it's not been listed as an exhibit. So
11 I would like to have a version of that, please.
12 Thanks.
13 THE COURT: Mr. Levine, why don't you take
14 this copy and give it to Mr. Charest.
15 MR. LEVINE: I already provided him a copy,
16 sir.
17 MR. CHAREST: I have the document. I need
18 the video. They said they found the full-length
19 version of the video. I would like to have that as
20 well, please.
21 THE COURT: Why don't the counsel work
22 together on that.
23 MR. CHAREST: Yes, sir.
24 MR. LEVINE: Thank you, Your Honor.
25 THE COURT: All right. Thank you.

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1 All right. Mr. Charest.


2 MR. CHAREST: Yes, sir.
3 THE COURT: We're close to our noon recess
4 for lunch, but why don't you go ahead and we'll use
5 every minute we got available for that.
6 MR. CHAREST: I think I can get there even
7 before lunch. So here we go.
8 REDIRECT EXAMINATION
9 BY MR. CHAREST:
10 Q. Mr. Long, you talked about those PowerPoint
11 presentations, specifically Defendants' Exhibits 196,
12 Appendix 198 for Barker, and Defense 308 -- sorry --
13 304, the Eagle's Trace.
14 You can't say, sitting here today under oath,
15 that a single human being ever saw those exhibits that
16 you talked about, can you, outside the Corps?
17 A. Say that again, please.
18 Q. You cannot say under oath that a single human
19 being actually saw those exhibits that we looked at
20 here today because you were not there; right?
21 A. I have no reason to believe they didn't.
22 Q. Sir, my question, please. You cannot say --
23 you, Mr. Long, under oath cannot say anyone saw those;
24 correct?
25 A. You're correct.

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1 Q. Thank you.
2 THE COURT: Double negatives are useful
3 sometimes but not in testimony by people, Mr. Long.
4 MR. CHAREST: Yes, sir.
5 Q. (By Mr. Charest) You talked about public
6 meetings, plural, in 2010, in February; right?
7 A. Yes.
8 Q. There's a two meetings; right?
9 A. Can -- yes.
10 Q. Right. Not more than two, just two; right?
11 A. Where again? Specify where, please, sir.
12 Q. The 2010 meetings that you talked about with
13 Mr. Levine for, like, 30 minutes.
14 A. Okay.
15 Q. There was two meetings in February; correct?
16 A. Addressed in the manual, there were two
17 meetings.
18 Q. Right. And how many people live in the
19 upstream areas that are subject to inundation by the
20 Addicks and Barker dams, just even order of magnitude?
21 A. A few thousand.
22 Q. A few thousand? There's 10,000 homes. So
23 how many people do you think?
24 A. I don't know.
25 Q. More than 10,000 people; right, sir?

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1 A. You're asking me to speculate on the number


2 of people living in the homes and --
3 Q. You worked in these areas for 40 years.
4 You're telling me under oath you don't have any
5 understanding as to whether or not it's more or less
6 than 10,000 people in that area?
7 A. I'm saying I never reached out and looked at
8 the boundaries of that area and gave it a clear
9 estimate as to how many people lived in there.
10 Q. You don't have any sense whether it's more or
11 less than 10,000 people, human beings?
12 A. I realize it's a lot of people living in
13 those areas.
14 Q. Do you know --
15 THE COURT: Mr. Levine.
16 MR. LEVINE: Your Honor, I'd like to object
17 as vague as to the area that Mr. Charest is talking
18 about.
19 MR. CHAREST: We both know full well what I'm
20 talking about. I'll move on, sir.
21 Q. (By Mr. Charest) How many people attended
22 these meetings that you were talking about for so long?
23 A. These -- the total number attending the
24 meetings was approximately 140, I believe, if I'm not
25 mistaken.

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1 Q. 143 people; right?


2 A. I can verify that if necessary.
3 Q. No, you're right. 143 people out of the more
4 than 10,000 that live in that area; correct?
5 A. That's what our meeting summary indicates.
6 Q. That website that you put on the mailer, is
7 it still up?
8 A. Say again.
9 Q. The Addicks and Barker info website that was
10 put on the mailer, is it still up?
11 A. I do not know. There is a website with
12 information on Addicks and Barker, but whether it
13 contains the same information or not, I do not know.
14 Q. The direct mailers you talked about.
15 Remember talking about sending direct mailers to
16 people?
17 A. Yes.
18 Q. You know that the Corps had street addresses
19 for every single person that it surveyed for the first
20 Corps survey; right?
21 A. I do not know that for a fact.
22 Q. You don't need to know. We know it. That's
23 okay.
24 The direct mailer went to people that were
25 directly adjacent to the governmental lands and not

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1 further; correct?
2 A. I would say that would be incorrect.
3 MR. CHAREST: Matt, show me Joint Exhibit 94,
4 please, JX0094, the Bates range ending with 4387.
5 Q. (By Mr. Charest) See that area between the
6 two red lines, sir?
7 A. Yes, I do.
8 Q. Agree with me or not that that is the area
9 of -- of notice given to people about these meeting by
10 direct mailing?
11 A. I believe so.
12 Q. Right. Not the entire neighborhood, even
13 though the Corps knew exactly where they lived, just
14 the people that were next to the actual governmental
15 land; right?
16 A. Define "next to."
17 Q. Between the two red lines.
18 A. Between the two red lines, yes.
19 Q. Thank you.
20 Last thing I want to talk about real quickly
21 is this plat language.
22 You remember talking about that?
23 A. The what language?
24 Q. The plat language.
25 A. The plat language? Yes.

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1 Q. First of all, there's no plat language in


2 Harris County that pertains to Addicks and Barker
3 reservoirs; correct?
4 A. Not to my knowledge.
5 Q. Right. And the only county that required any
6 kind of language about the Addicks and Barker was for
7 Bend; right?
8 A. To my knowledge.
9 MR. CHAREST: Matt, show me, please, Defense
10 Exhibit 177. Don't show it. Don't highlight anything
11 yet.
12 Q. (By Mr. Charest) You were talking about
13 these with familiarity; right? Where is the plat
14 language that you were talking about with Mr. Levine?
15 A. The -- this is too hard to read. I can't
16 read it here. I'd have to have it blown up some more.
17 Q. Okay. I'll do all us --
18 Blow up the middle column, please, Matt. The
19 middle column.
20 Does that help? If it doesn't, I can make it
21 bigger.
22 Let's cut to the chase.
23 Matt, go to 31, please. I'll show him where
24 it is.
25 Can you read that into the record, sir.

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1 A. "This subdivision is adjacent to Barker


2 Reservoir which is subject to controlled inundation
3 under the management of the U.S. Army Corps of
4 Engineers."
5 Q. That's the notice that you were so proud and
6 talked to Mr. Levine about?
7 A. Ask the question again, please, sir.
8 Q. Is that the notice you were talking with
9 Mr. Levine?
10 A. Yes, it is.
11 Q. Okay. Now, here, we had the discussion,
12 remember, that press release about the definition of
13 "reservoir"?
14 A. Yes.
15 Q. So here the definition of "reservoir" as
16 being used is government-owned lands; right?
17 A. Yes.
18 Q. Because, in fact, that neighborhood is inside
19 the reservoir, not adjacent to the reservoir, isn't it,
20 sir?
21 A. This says adjacent to Barker Reservoir.
22 Q. Yeah. I'm asking about the neighborhood.
23 The neighborhood is inside the reservoir, not adjacent
24 to; correct?
25 A. Using the terminology here in this, it

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1 indicates that the neighborhood is adjacent to the


2 reservoir.
3 Q. Right. But you know it's actually inside;
4 right, sir?
5 A. Again, we have an issue with the definition
6 of "reservoir."
7 Q. Okay. Is that in this disclosure, that
8 there's a definition issue about reservoir?
9 A. This is indicating that the land adjacent to
10 Barker Reservoir is subject to controlled inundation
11 under the management of the U.S. Army Corps of
12 Engineers.
13 Q. Hold on. It doesn't say that the land
14 adjacent to Barker Reservoir is subject to -- no, no,
15 sir.
16 Wait for me. It doesn't say that the land
17 adjacent to Barker Reservoir is subject to controlled
18 inundation. It says the Barker Reservoir is subject to
19 controlled inundation and that these lands are adjacent
20 to that; correct?
21 A. Yes.
22 Q. All right. So it doesn't say that the land
23 that's reflected in black is subject to controlled
24 inundation, does it, sir?
25 A. It just says that the subdivision is adjacent

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1 to Barker Reservoir, which is subject to controlled


2 inundation under the management of the U.S. Army Corps
3 of Engineers.
4 Q. Right. So let's -- our grammar -- the
5 grammar limitations here, the reservoir is subject to
6 controlled inundation; the land is next to the
7 reservoir. Right?
8 A. All I can make -- say is what this states
9 right here.
10 Q. Right.
11 MR. CHAREST: Thank you. Pass the witness.
12 THE COURT: Any recross, which is actually
13 redirect, Mr. Levine?
14 MR. LEVINE: No, Your Honor. But, again, as
15 I indicated, if we can not excuse Mr. Long at this time
16 if we need to recall him for limited purpose.
17 THE COURT: Well, thank you.
18 Mr. Levine, you are temporarily excused
19 subject to recall to address the point that you heard
20 Mr. Levine make earlier.
21 THE WITNESS: Thank you, sir.
22 THE COURT: Thank you. Well, it is about
23 time for our luncheon break. May we take a recess for
24 one hour for lunch?
25 MR. CHAREST: That would be fine with us.

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1 Thank you, sir.


2 MR. SHAPIRO: Yes, Your Honor.
3 THE COURT: We're in recess for one hour.
4 THE CLERK: All rise. Court is adjourned.
5 (Whereupon a lunch recess was taken.)
6 THE CLERK: All rise. The United States
7 Court of Federal Claims is now in session, the
8 Honorable Charles F. Lettow presiding.
9 THE COURT: Please be seated.
10 Mr. Easterby.
11 MR. EASTERBY: Yes, Your Honor.
12 THE COURT: Where do we go from here?
13 MR. EASTERBY: We will call Mr. Mitch Stewart
14 to the stand.
15 THE COURT: Is it Stewart?
16 MR. EASTERBY: Yes, sir.
17 THE COURT: Thank you.
18 Mr. Stewart, if you'd stop about right there
19 and raise your right hand to be sworn as a witness.
20 Thereupon--
21 MITCHELL STEWART,
22 was called as a witness, and having been first duly
23 sworn, was examined and testified as follows:
24 THE WITNESS: I do.
25 THE COURT: Please be seated in the witness

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1 stand, Mr. Stewart. Would you state your full name for
2 the record.
3 THE WITNESS: Mitchell Stewart.
4 THE COURT: Thank you.
5 Mr. Easterby, you may proceed.
6 DIRECT EXAMINATION
7 BY MR. EASTERBY:
8 Q. Good afternoon, Mr. Stewart. Thank you for
9 being here.
10 Mr. Stewart, is it your understanding that
11 you were one of the test properties that was selected
12 by the government in this case?
13 A. Yes.
14 Q. Okay. And are you a married man?
15 A. Yes.
16 Q. How long have you been married?
17 A. 41 years.
18 Q. Is your wife in the courtroom today?
19 A. She is.
20 Q. And who's that?
21 A. Donna Stewart.
22 Q. Okay.
23 Any children, Mr. Stewart?
24 A. Two children, one son and one daughter.
25 Q. They grown?

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1 A. They are grown.


2 Q. What is your address, Mr. Stewart?
3 A. 4719 Eagle Trail Drive.
4 Q. And is that your sole residence?
5 A. It is.
6 Q. Was there a time when you had more than one
7 residence?
8 A. Yes. Up until a few weeks ago, yes.
9 Q. Okay. We'll circle back on that. Is 4719
10 Eagle Trail Drive in Harris County?
11 A. Yes, it is.
12 Q. And, Mr. Stewart, how long have you lived
13 there?
14 A. We've lived there for 36 years.
15 Q. Okay. Bought it in 1983?
16 A. 1983.
17 MR. EASTERBY: I'd like to show Stewart
18 Exhibit 5.
19 Q (By Mr. Easterby) And, Mr. Stewart, if you
20 look at your monitor -- hoping you can see this -- is
21 this the deed of trust that you signed back in 1983
22 when you purchased that house on Eagle Trail?
23 A. Yes, it is.
24 MR. EASTERBY: We would admit Stewart
25 Exhibit 5 -- move to admit Stewart Exhibit 5.

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1 THE COURT: Mr. Levine?


2 MR. LEVINE: No objection, Your Honor.
3 THE COURT: Admitted.
4 (Whereupon, Stewart Exhibit 5 was
5 admitted into evidence.)
6 Q (By Mr. Easterby) Okay. So, Mr. Stewart, is
7 it correct that you and your wife were the owner of
8 that property on Eagle Trail when the flooding occurred
9 in late August, early September 2017?
10 A. Yes, we were.
11 Q. And what neighborhood is that called that you
12 live in?
13 A. Bear Creek Village.
14 Q. Okay.
15 I'd like to show Stewart Exhibit 4, if I may.
16 And, Mr. Stewart, do you recall giving a
17 deposition in this case?
18 A. Yes.
19 Q. And do you recall this being one of the
20 exhibits shown to you?
21 A. Yes, I do.
22 Q. Is that your handwriting up there in the
23 circle?
24 A. It is.
25 Q. And what's depicted in that circle?

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1 A. That's where our house is, the lot our house


2 is on.
3 Q. Okay.
4 MR. EASTERBY: Your Honor, we'd move to admit
5 Stewart Exhibit 4.
6 MR. LEVINE: No objection, Your Honor.
7 THE COURT: Admitted.
8 (Whereupon, Stewart Exhibit 4 was
9 admitted into evidence.)
10 THE COURT: Thank you, Mr. Levine.
11 Q. (By Mr. Easterby) Now, Mr. Stewart, did you
12 have flood insurance when y'all got submerged in late
13 August, early September of '17?
14 A. We did not.
15 Q. Why not?
16 A. We didn't think that it was necessary. We're
17 not in the flood zone. We've never had high water,
18 never had water over the curb as far as I know.
19 Q. Okay.
20 In terms of the flood zone, Matt, would you
21 put up Plaintiffs' Exhibit 461.
22 And, Mr. Stewart, what I'm showing you is a
23 flood insurance rate map dated June 18th, 2007. Can
24 you see that on your monitor?
25 A. Yes.

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1 Q. Okay.
2 And that -- if you could zoom back out, if
3 you would, Matt. And kind of zoom in this area right
4 over here.
5 Little more. It's kind of hard to read, if
6 you don't mind. Just a little higher. There we go.
7 So, Mr. Stewart, you see the street here that
8 says Hickory Downs?
9 A. Yes.
10 Q. Is Eagle Trail this street that comes right
11 up where my green little laser is pointing?
12 A. That's correct.
13 Q. So your house is about right there?
14 A. Yes.
15 Q. Okay. And does this --
16 Your Honor, sorry.
17 THE COURT: Is this 401?
18 MR. EASTERBY: 461, Your Honor.
19 THE COURT: Thank you.
20 MR. EASTERBY: Your Honor, we would move to
21 admit Plaintiffs' Exhibit 461.
22 MR. LEVINE: No objection, Your Honor.
23 THE COURT: Admitted.
24 (Whereupon, Plaintiffs' Exhibit 461 was
25 admitted into evidence.)

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1 Q (By Mr. Easterby) And, Mr. Stewart, your


2 street -- your home is in the area that's white;
3 correct?
4 A. That's correct.
5 Q. Not shaded; correct?
6 A. Not shaded.
7 Q. What does that mean to you as a homeowner in
8 the Bear Creek Village area?
9 A. That it's outside of the flood zone.
10 Q. 500-year, 100-year, any flood zone?
11 A. Any flood zone.
12 MR. EASTERBY: Your Honor, we'd like to show
13 Plaintiffs' Exhibit 2188.
14 Q (By Mr. Easterby) And, Mr. Stewart, this is
15 another flood insurance rate map from FEMA dated
16 July 2nd, 2015.
17 Do you see that?
18 A. Yes.
19 MR. EASTERBY: And, again, Matt, if you could
20 just zoom in in that same exact area.
21 Q (By Mr. Easterby) Let's see. Here's Hickory
22 Downs. Is that your house right about there?
23 A. Yes, it is.
24 Q. And, again, no flood zone?
25 A. No flood zone.

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1 Q. Okay. Now, Mr. Stewart, when Harvey made


2 landfall back in Friday, August 25th, 2017, where were
3 you and Donna?
4 A. We were at home.
5 Q. So did y'all stay in the house throughout the
6 storm up to a point?
7 A. Yes.
8 Q. Okay. Why didn't y'all evacuate?
9 A. We didn't feel that there was any need. The
10 storm originally went in over 100 miles south of us,
11 down between Victoria and Rockport. And, at that time,
12 we didn't know that it would be heading our way. We
13 had been through a couple of hurricanes before, several
14 other tropical storms, but -- other big rain events,
15 and we'd never had any serious problems or any problem
16 to speak of with flooding before.
17 Q. Understood.
18 MR. EASTERBY: Your Honor, I forgot to ask to
19 admit Plaintiffs' Exhibit 2188.
20 MR. LEVINE: No objection, Your Honor.
21 THE COURT: Thank you, Mr. Levine.
22 Admitted.
23 (Whereupon, Plaintiffs' Exhibit 2188 was
24 admitted into evidence.)
25 Q (By Mr. Easterby) Mr. Stewart, were you in

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1 your home during the Tax Day 2016 event?


2 A. We were not.
3 Q. You were out of town?
4 A. We were out of town.
5 Q. What about back during Allison?
6 A. We were home during Allison.
7 Q. Let me just kind of cut to the chase here.
8 Prior to that late August, early
9 September '17, had you ever seen storm water get above
10 your curb --
11 A. No.
12 Q. -- on Eagle Trail?
13 A. No, we did not.
14 Q. And back on August 29th of 2017, did y'all
15 eventually evacuate?
16 A. We did.
17 Q. And can you tell us what -- what motivated
18 y'all to evacuate back on August 29th?
19 A. Well, I had pretty much decided that I was
20 going to stay in the house until it was evident that
21 the -- that the water would come in, because I really
22 didn't believe that it would. And it got to the point
23 where it was maybe an inch from coming in the front
24 door. And my wife finally convinced me it was time to
25 go after a lot of prodding. And so she went out and

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1 flagged down the boat, and they came and got us.
2 Q. Okay. And during this period of time during
3 the Harvey storm, did y'all take some photographs?
4 A. We did. We took a lot of photographs.
5 Q. Take some videos?
6 A. We did.
7 Q. Do you recall if you used your phone or
8 Donna's phone to do that?
9 A. We used Donna's phone.
10 Q. And why is that?
11 A. Because I don't have a personal phone. I use
12 my company phone, and we're not allowed to use it for
13 personal use.
14 Q. Yes, sir.
15 I'd like to hand you, Mr. Stewart, what's
16 been marked for identification as Stewart 25.
17 MR. EASTERBY: And, Your Honor, I'm going to
18 hand a copy to your clerk with the Court's permission,
19 as this is one that you would not find in a binder. I
20 have exchanged this with opposing counsel.
21 Q (By Mr. Easterby) Okay. Mr. Stewart, can
22 you tell us what we're seeing in Stewart Exhibit 25?
23 A. That's a picture from inside the house. It
24 is our dining room. You can see, out the windows, our
25 deck in the front with the -- a gate, the entry gate.

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1 Q. So is this a two-story house? one-story


2 house? What kind of house?
3 A. Single story.
4 Q. How many bedrooms?
5 A. Four.
6 Q. Do you know about how many square feet it is?
7 A. Overall, including the garage, it's about
8 2500.
9 Q. And, Mr. Stewart, does this picture
10 accurately and fairly depict what is shown in
11 Exhibit 25 as of August 29th, 2017, at 9:54 a.m.?
12 A. Yes. Yes.
13 MR. EASTERBY: We'd move to admit Stewart 25.
14 MR. LEVINE: No objection, Your Honor.
15 THE COURT: Admitted.
16 (Whereupon, Stewart Exhibit 25 was
17 admitted into evidence.)
18 Q. (By Mr. Easterby) So, Mr. Stewart, why are
19 the chairs on the table?
20 A. Well, when we got up on the morning of the
21 29th, the water had moved from down at the curb to more
22 than halfway up the yard. It was a few feet from our
23 garage. And it made us realize that there was a very
24 serious potential that we might end up flooding.
25 Q. Yes, sir.

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1 A. So we started stacking stuff up.


2 Q. And, other than putting the chairs up on the
3 table, did y'all do anything else to try to preserve
4 your personal property?
5 A. We put a lot of our important things and as
6 much as furniture as we could on top of beds, on top of
7 tables, on top of other chairs. We also took some
8 important things to us and put them in trash bags and
9 had them stationed ready to grab if we had to go out
10 the door.
11 Q. Yes, sir.
12 Let me hand you what's been marked for
13 identification as Stewart 26. And, Mr. Stewart, I'm
14 just going to ask you about the first page of 26, and
15 that's what we will move into evidence shortly.
16 Do you recognize what's being depicted on
17 Stewart 26?
18 A. Yes.
19 Q. Is that you and Donna?
20 A. That is us.
21 Q. And does this fairly and accurately depict
22 what's portrayed in this photograph as of August 29th
23 at 2:18 p.m.?
24 A. That's correct, yes.
25 MR. EASTERBY: We move to admit Stewart 26

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1 into evidence, Your Honor.


2 MR. LEVINE: No objection, Your Honor.
3 THE COURT: Admitted.
4 (Whereupon, Stewart Exhibit 26 was
5 admitted into evidence.)
6 Q (By Mr. Easterby) And so, Mr. Stewart, is
7 this when y'all evacuated?
8 A. Yes, it is.
9 Q. And whose boat is that, if you know?
10 A. That was some folks from Tomball that were
11 volunteers that were working, I guess, for the last day
12 or two, picking up people in the neighborhood.
13 Q. And I do see a couple of trash bags behind
14 you. Is that what you were talking about earlier?
15 A. Yes.
16 Q. Were you able to get everything important to
17 you out of the house before you had to evacuate?
18 A. Not by any means.
19 Q. What about animals?
20 A. We left our cat behind on the -- on a bed.
21 We gave him -- we put food and water out there, and we
22 put -- we pulled a chair up next to the bed and put a
23 cat -- a litter box on the chair so that -- we didn't
24 know how long it would be before we could return, but
25 we wanted to try and save her if possible.

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1 Q. And the cat made it; right?


2 A. The cat did great.
3 Q. Okay. So, from this vantage point looking
4 behind you and Donna, is that headed south down Eagle
5 Trail?
6 A. Right. It's heading south down Eagle Trail
7 towards Hickory Downs. That's our mailbox behind us.
8 Q. And you've been here the whole last week,
9 haven't you, Mr. Stewart?
10 A. Yes.
11 Q. And I think you get paid when you work;
12 right?
13 A. That's correct.
14 Q. And I do apologize for the last week. Did
15 you hear some testimony about a young man losing his
16 life named --
17 A. Yes.
18 Q. -- Andrew Pasik?
19 A. Yes. Sure did.
20 Q. And do you happen to know where he was when
21 he passed away?
22 A. He was at the intersection of Hickory Downs
23 and Eagle Trail, right at the end of our street, about
24 five houses away from us.
25 Q. So about 150 yards right down the road there?

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1 A. Yes.
2 If you look down in the -- in the top right
3 corner, you can see a -- kind of a white space in
4 the -- in the green trees there. It would have been
5 right about there.
6 Q. Right about there (indicating)?
7 A. Yes.
8 Q. Okay. Now, Mr. Stewart, let me hand you
9 what's been marked for identification as Stewart 27.
10 A. Yep.
11 Q. And, Mr. Stewart, do you recognize
12 Stewart 27?
13 A. Yes.
14 Q. Does it fairly and accurately depict what it
15 looked like back on August 29th at 2:24 p.m.?
16 A. Yes, it does.
17 Q. And do you see that mailbox there?
18 A. Right.
19 Q. Had you ever seen anything like that in all
20 those years you've been living in Bear Creek Village?
21 A. I have not.
22 Q. Anything close to that?
23 A. Nothing close to that.
24 Q. And I'm not -- I'm not going to hold you to a
25 precise answer, but do you have any idea how much

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1 higher the top of the mailbox is in relationship to the


2 street in that area?
3 A. I would say at least 4 feet.
4 MR. EASTERBY: Your Honor, we'd move to admit
5 Stewart 27.
6 MR. LEVINE: No objection, Your Honor.
7 THE COURT: I'm sorry. Say again.
8 MR. LEVINE: No objection, Your Honor.
9 THE COURT: Thank you. Admitted.
10 (Whereupon, Stewart Exhibit 27 was
11 admitted into evidence.)
12 Q (By Mr. Easterby) I'm going to hand you
13 what's been marked for identification a native
14 placeholder called Stewart 9, Mr. Stewart.
15 Could you put that up please, Matt, just so
16 we got a good record.
17 Mr. Stewart, did y'all happen to shoot any
18 video on your boat ride out?
19 A. Yes, we did.
20 Q. Okay.
21 With the Court's kind permission, I'd like to
22 play the video that corresponds to the native
23 placeholder that's been marked for identification as
24 Stewart 9.
25 THE COURT: Mr. Levine, is that satisfactory?

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1 MR. LEVINE: No objection, Your Honor.


2 THE COURT: Okay.
3 (Whereupon video was played.)
4 Q (By Mr. Easterby) Mr. Stewart, did that
5 video fairly and accurately depict the events it showed
6 on August 29th in the afternoon about 2:30 p.m.?
7 A. Yes, it did.
8 MR. EASTERBY: Your Honor, we would move to
9 admit Stewart 9 and the corresponding native file.
10 MR. LEVINE: No objection, Your Honor.
11 THE COURT: Admitted.
12 (Whereupon, Stewart Exhibit 9 was
13 admitted into evidence.)
14 Q (By Mr. Easterby) So, Mr. Stewart, how far
15 did y'all have to ride in that boat from your house on
16 Eagle Trail to get to higher ground where there was no
17 reservoir pool?
18 A. We had to go down to Hickory Downs, turn
19 south on Hickory Downs a couple of blocks to Cairnway.
20 Cairnway, we took a right, headed up to Highway 6.
21 There's a Chase Bank there.
22 Q. I tell you what.
23 Just -- just -- let's put up Plaintiffs'
24 Exhibit 461, just so we can give everyone some context
25 as to what you're describing. Zoom back in.

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1 So, Mitch, you got -- y'all were here. This


2 is your house?
3 A. Yes.
4 Q. So did you go north or south?
5 A. We went south.
6 Q. And then you went like this?
7 A. Yes. And then turned right there.
8 Q. And then you went out here?
9 A. Up to 6, yeah, and there's a Chase Bank right
10 there on the -- which would be the upper right-hand
11 corner of that intersection.
12 Q. And --
13 A. That's where they were parking the boats,
14 letting people get out.
15 Q. Kind of a staging area?
16 A. Right.
17 Q. So that's what? About an eighth of a mile
18 from your house?
19 A. Probably an eighth of a mile the way the crow
20 flies, but it's probably longer than that, more like a
21 quarter of a mile.
22 Q. And where did y'all stay that night,
23 Mr. Stewart?
24 A. We stayed at a friend's house in Copperfield,
25 which is up Highway 6 a few miles.

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1 Q. Yes, sir. Let me hand you what's been marked


2 for identification as Stewart 7.
3 A. Okay.
4 Q. And, Mr. Stewart, on August 30th of 2017,
5 after y'all evacuated the next day, did you go back
6 into your neighborhood and into your house?
7 A. Yes, we did.
8 Q. And did you happen to take a photograph?
9 A. Yes. We took several.
10 Q. Okay. And is Stewart 7 -- does it fairly and
11 accurately depict what it looked like there on
12 August 30th, 2017, at 1:55 p.m.?
13 A. Yes. That's the same room that the earlier
14 picture was taken in.
15 Q. Yes, sir.
16 MR. EASTERBY: Your Honor, we'd move to admit
17 Stewart 7.
18 MR. LEVINE: No objection, Your Honor.
19 THE COURT: Admitted.
20 (Whereupon, Stewart Exhibit 7 was
21 admitted into evidence.)
22 Q (By Mr. Easterby) So, Mr. Stewart, why did
23 you go back on the 30th?
24 A. To get the cat.
25 Q. And did you walk around the house and take

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1 some videos and kind of look at the state of --


2 A. Yes.
3 Q. -- the conditions?
4 A. We did. I knew that we didn't have flood
5 insurance. At that point, we didn't know that -- we
6 didn't know any of the other history of the reservoir
7 or anything like that. So I just assumed that that was
8 going to be a big loss for us, and I wanted to document
9 as much as I could.
10 Q. Understood. Now, Mr. Stewart, why did y'all
11 decide to buy that house on Eagle Trail back in 1983 in
12 the first place?
13 A. We had rented a house that was near there --
14 well, first of all, when we first moved to Houston, we
15 had rented an apartment and then later rented a house
16 close by.
17 And it was close to where I worked. We liked
18 the schools. It was a well-kept neighborhood.
19 Everybody kept their houses up good. Everything -- it
20 was the right layout of the home, the right number of
21 rooms. It just seemed like a -- a good place that
22 would be close to work and be nice to live in.
23 Q. Has the character of that neighborhood
24 changed since when you bought it and up to Harvey and
25 since Harvey?

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1 A. Up until Harvey, it was pretty much the same.


2 It was still a very nice neighborhood, very desirable.
3 Q. What about now?
4 A. It's changed a lot.
5 Q. Please describe briefly, if you would, what
6 you mean by that.
7 A. Well, there's still quite a few houses in the
8 neighborhood that are -- either have not been repaired
9 or in some state of repair. A lot of the houses that
10 were owned by long-time residents are now -- have been
11 resold, some multiple times. A lot are being used as
12 rent houses.
13 Q. About how much water came in your house, if
14 you could estimate for the Court, please, Mr. Stewart?
15 A. Somewhere between 5 and 9 inches, I guess.
16 Q. Yes, sir.
17 A. Different parts of the home.
18 Q. I'd like to hand you what's been marked for
19 identification as Stewart 29. And 29, Mr. Stewart, is
20 a photograph that was taken on September 8th, 2017, at
21 6:34 p.m. Is that correct?
22 A. Yes.
23 Q. And does it fairly and accurately depict what
24 y'all's house looked like at that time?
25 A. Yes, it does.

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1 MR. EASTERBY: And we would move to admit


2 Stewart 29.
3 MR. LEVINE: No objection, Your Honor.
4 THE COURT: Admitted.
5 (Whereupon, Stewart Exhibit 29 was
6 admitted into evidence.)
7 Q (By Mr. Easterby) So, Mr. Stewart, if you
8 get, say, 8 inches to a foot of water in your house,
9 can you explain why the drywall has been taken out to
10 4 feet.
11 A. Sure. As -- in fact, actually before we even
12 left the house, I had called a contractor that we had
13 used for some home improvements in the past that I knew
14 did good work and we trusted and told him our situation
15 and asked him to be ready, 'cause at some point we were
16 going to be needing him.
17 And he advised that we -- he came -- first,
18 he came to the house once it was dry enough for him to
19 get there and told us everything that we could do by
20 ourselves or with help that we could do without being
21 charged. And he suggested that we cut out the
22 Sheetrock at 4 feet because it was less expensive for
23 them to just put up new full sheets of Sheetrock than
24 to try and cut them to actually match the areas that --
25 that had been -- had gotten wet, plus the fact that you

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1 didn't know how much mold or wetness was growing up on


2 the inside of the Sheetrock.
3 Q. Right. Because a sheet of Sheetrock is
4 8 feet long and 4 feet high; right?
5 A. Correct.
6 Q. So that way they can just lay it right in
7 there --
8 A. Yes.
9 Q. -- and it's -- it's cheaper than having to
10 cut down here and try to float and tape all that at
11 2 feet?
12 A. Correct. Yeah, the labor involved with
13 cutting all the pieces to fit would be much more
14 expensive than just putting up full sheets.
15 Q. When you bought the house, was there any
16 disclosure or discussion of there being some kind of
17 flood issue in your neighborhood?
18 A. None, none.
19 Q. Did y'all talk to a Realtor or anybody about
20 that?
21 A. Yeah, the Realtor that we used to help us
22 select the house was a long-time family friend. And
23 she never mentioned anything. We never heard from
24 anybody else. We talked to some neighbors, and nobody
25 ever brought up that subject at all.

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1 Q. Okay. Mr. Stewart, let me hand you what's


2 been marked for identification as Stewart 30. And,
3 Mr. Stewart, Stewart 30 is a photograph dated
4 September 8th, 2017, at 10:06 a.m.
5 Do you see that?
6 A. Yes.
7 Q. Does it fairly and accurately depict what's
8 portrayed in this photo?
9 A. Yes, it does.
10 MR. EASTERBY: We'd move to admit Stewart 30
11 into evidence.
12 MR. LEVINE: No objection, Your Honor.
13 THE COURT: Admitted.
14 (Whereupon, Stewart Exhibit 30 was
15 admitted into evidence.)
16 Q (By Mr. Easterby) So, Mr. Stewart, in your
17 deposition, the government's lawyer asked you a
18 question about what was taken from you.
19 Do you remember that?
20 A. Yes, I do.
21 Q. I'd like you to tell the Court, in your own
22 words, what do you think was taken from you by the
23 government when they stored that Addicks pool in your
24 home?
25 A. Well, for 34 years, we had a house that had

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1 never flooded. And then, after Harvey, we had a


2 flooded house. We had 4 feet of -- everything under
3 4 feet that was inside the house was pretty much
4 ruined.
5 All of our interior doors, you can see a
6 bunch of them stacked up against one of the trees there
7 in the front yard. A lot of our clothes, most of our
8 appliances, my lawn mower, a bunch of stuff that was in
9 the garage. You know, I could probably sit here for an
10 hour thinking of things that were taken from us
11 permanently.
12 Q. And you say "permanently." Why do you say
13 that?
14 A. Because it was things that couldn't be
15 replaced. We had boxes of photographs. We had a lot
16 of, you know, personal momentos, things that
17 couldn't -- could never be replaced.
18 Q. And all this debris we're seeing in
19 Stewart 30, where did that end up going if you know?
20 A. I don't even know. It just got scooped up
21 and thrown in the back of a gigantic truck and hauled
22 off.
23 Q. So you talked about some damage to
24 appliances. Did you have to replace your HVAC, your
25 air-conditioning unit?

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1 A. We did. Yes, we sure did.


2 Q. Any other kind of major appliances that were
3 lost to those impounded stormwaters?
4 A. Yeah. We haven't even replaced all of them.
5 But all of our appliances were either not operable or
6 were soaked inside with contaminated floodwater.
7 Q. So, Mr. Stewart, no flood insurance; right?
8 A. Correct.
9 Q. You got a little bit of money from FEMA, yes?
10 A. Right. Uh-huh.
11 Q. Did you get an SBA loan?
12 A. We applied for one.
13 Q. Turned down?
14 A. Didn't get it, correct.
15 Q. 'Cause Donna didn't have a W-2 from 2005 or
16 something like that?
17 A. 2015.
18 Q. 2015. So how did y'all pay for all the
19 renovations and repairs?
20 A. Out of savings. And I also took some money
21 out of an IRA.
22 Q. And you mentioned that you recently sold
23 another house?
24 A. We did.
25 Q. And where was that house?

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1 A. That house was in Kingsland, Texas, on Lake


2 LBJ.
3 Q. So, that's -- what? -- up in central Texas
4 area?
5 A. Correct.
6 Q. Why did y'all sell the house?
7 A. We had used up almost all of our savings.
8 And it got to the point where, if we would have had
9 anything come up, if we had to replace a roof or if we
10 would have had to, you know, have any -- any type of --
11 any type of emergency situation that would require much
12 money, we wouldn't have had the money to do it.
13 Q. Okay. Mr. Stewart, last picture I'm going to
14 show you has been marked for identification as 32.
15 A. Uh-huh.
16 Q. And 32 is a picture of Donna. And who else
17 is that in that picture?
18 A. That's our daughter.
19 Q. I see. And it's dated September 3rd, 2017,
20 at 3:36 p.m.?
21 A. Yes.
22 Q. Does it accurately and fairly depict what it
23 looked like back at that date and time?
24 A. Yes, it does.
25 MR. EASTERBY: So we'd move to admit

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1 Stewart 32 into evidence, Your Honor.


2 MR. LEVINE: No objection, Your Honor.
3 THE COURT: Admitted.
4 (Whereupon, Stewart Exhibit 32 was
5 admitted into evidence.)
6 Q (By Mr. Easterby) And it looks like Donna is
7 having a little break --
8 A. Right.
9 Q. -- with her daughter?
10 A. Uh-huh.
11 Q. You see the water that's still in the street?
12 A. That's right.
13 Q. Do you remember how long it was that the
14 water stayed in the street after that August 29th
15 evacuation, if you remember?
16 A. We -- we had water actually in the house for
17 four or five days. So before we could get a car down
18 the street was another probably four or five days.
19 Q. Now, Mr. Stewart, prior to getting submerged
20 back there on August 29th, did you have any idea y'all
21 were living in a reservoir?
22 A. None.
23 Q. You drive by government-owned land probably
24 almost every day, don't you?
25 A. Yes, on Clay Road.

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1 Q. And what does that look like on Clay Road?


2 A. Now?
3 Q. Back then, back before Harvey.
4 A. How does it look?
5 Q. Yeah. What is it?
6 A. Clay Road is -- is just a -- you know, a
7 street than ran north of the Bear Creek Golf Course and
8 the soccer fields and a walking track.
9 Q. Okay. And what I'm getting at, Mr. Stewart,
10 is that area that's south of Clay Road, which is the
11 government-owned land, golf course?
12 A. Right.
13 Q. Soccer fields?
14 A. Right.
15 Q. Did you have any idea that the government
16 would use your house as part of its project during a
17 storm like this?
18 A. Absolutely not.
19 Q. You've been here all week, last week,
20 watching the testimony? You been here; right?
21 A. Yes.
22 Q. And you saw the evidence about the Corps
23 having the names and addresses and elevations of all
24 the folks that live up there?
25 A. Right.

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1 Q. Did you ever get a letter or any kind of


2 notice about living in a reservoir pool?
3 A. Never.
4 Q. Did you get the letter that we saw this
5 morning from Mr. Long, that postcard?
6 A. Postcard, we did not.
7 Q. You weren't -- you're not in that little
8 strip that's adjacent to government-owned land?
9 A. No.
10 Q. Do you have flood insurance now?
11 A. Yes, we do.
12 Q. And why is that?
13 A. Well, because it's become more and more
14 apparent that, not only could it happen again, but it
15 probably will happen again. And we could never come
16 close to affording the loss that we took this time.
17 Q. So how long were y'all out of the house from
18 August 29th until the repairs were made and it was
19 habitable?
20 A. It was about five months.
21 Q. So you said that first night you stayed with
22 some friends. And then, after that, what did y'all do?
23 A. We -- a few days later, we moved in with my
24 son. He had a two-bedroom apartment. We were given
25 one of the bedrooms to live in until we were able to

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1 move back in the house.


2 Q. And how long was that for? Six months?
3 A. For the rest of the -- yeah, for -- for
4 almost five months.
5 Q. I think I came to visit y'all back in May of
6 2018. Do you remember that?
7 A. Yes. Right.
8 Q. And you just kind of finished fixing up the
9 house?
10 A. Right. That's correct.
11 Q. Does it look today like it did back then
12 before Harvey?
13 A. No. It -- I mean, it's getting close. We
14 still have some things that we have to do. We still
15 have some things that we have to replace, but it's --
16 it sure looks a lot better than it did right after
17 Harvey.
18 Q. Right. You used to have wood floors?
19 A. That's correct.
20 Q. What do you have now?
21 A. Tile.
22 Q. Why?
23 A. 'Cause tile doesn't float.
24 Q. Tile doesn't float.
25 A. Right. It could possibly hold up to

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1 flooding.
2 Q. Okay. Mr. Stewart, I really thank you so
3 much for being here this whole week. I'm sorry about
4 missing work like that.
5 MR. EASTERBY: Your Honor, I'll pass the
6 witness.
7 THE COURT: Mr. Levine.
8 MR. LEVINE: Thank you, Your Honor.
9 CROSS-EXAMINATION
10 BY MR. LEVINE:
11 Q. Good afternoon, Mr. Stewart.
12 A. Good afternoon.
13 Q. Do you remember meeting me at your
14 deposition?
15 A. I sure do.
16 Q. It's good to see you again, sir.
17 A. Uh-huh.
18 MR. LEVINE: Your Honor, before I start the
19 examination, I would just like to say that the parties'
20 joint stipulations of fact are in ECF Document 211.
21 And the stipulations pertaining to Mr. Stewart are on
22 page 9 of that document, paragraphs 56 to 61.
23 THE COURT: Thank you.
24 MR. LEVINE: Thank you.
25 Q (By Mr. Levine) Okay. Mr. Stewart, I just

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1 want to start with a few questions to orient us.


2 If we could, could we put up DX840.
3 Thank you. Thank you.
4 Mr. Stewart, you testified earlier about the
5 location of your property on Eagle Trail Drive. Do you
6 see that on this map?
7 A. I do.
8 Q. Okay.
9 MR. LEVINE: Your Honor, we move to admit
10 DX840.
11 MR. EASTERBY: No objection, Your Honor.
12 MR. LEVINE: If we could introduce DX --
13 THE COURT: Admitted.
14 MR. LEVINE: Oh, sorry.
15 (Whereupon, Defendants' Exhibit 840 was
16 admitted into evidence.)
17 MR. LEVINE: Pardon me, Your Honor.
18 If we could introduce DX839.
19 Q (By Mr. Levine) Mr. Stewart, does this
20 aerial image accurately show the location of your
21 property on Eagle Trail Drive?
22 A. Yes, I believe so.
23 MR. LEVINE: Your Honor, we move to admit
24 DX839.
25 MR. EASTERBY: Your Honor, my only issue with

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1 this is the callout box on the top right that says


2 "property of interest," and it's got some blue little
3 squiggly lines on it. I don't know where those come
4 from. But, other than that, I don't have an objection
5 to this exhibit.
6 THE COURT: Mr. Levine, what does the Court
7 do with the added-on notations? If it's not a problem,
8 the location map is satisfactory.
9 MR. LEVINE: Thank you, Your Honor.
10 THE COURT: Admitted.
11 (Whereupon, Defendants' Exhibit 839 was
12 admitted into evidence.)
13 Q (By Mr. Levine) Mr. Stewart, you testified
14 earlier about the damage to your house from the
15 floodwaters; is that correct?
16 A. Yes.
17 Q. Okay. And, after the flooding, you were able
18 to repair the damage to your house; correct?
19 A. We have not finished it. There's some things
20 that still have to be done, but yes.
21 Q. And you moved back into the house in March of
22 2018; is that correct?
23 A. Probably, yes. Yeah.
24 Q. Talking about -- you've lived in the Houston
25 area a long time; correct?

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1 A. Yes.
2 Q. So you would say that the city of Houston has
3 a history of flooding; correct?
4 A. There has been flooding in the city of
5 Houston, yes.
6 Q. Okay. And you would say that Harris County
7 has a history of flooding; correct?
8 A. Yes. I'm not -- I imagine pretty much
9 anyplace you can come up with would have some flooding
10 somewhere.
11 Q. And you'd say that Fort Bend County has a
12 history of flooding; correct?
13 MR. EASTERBY: Objection, Your Honor. No
14 foundation for this witness having knowledge about Fort
15 Bend County's flooding issue since he's a Harris County
16 resident.
17 THE COURT: Mr. Levine?
18 MR. LEVINE: If I might just ask the witness
19 another question, Your Honor.
20 THE COURT: All right. Thank you.
21 MR. LEVINE: Thank you.
22 Q (By Mr. Levine) Mr. Stewart, do you recall
23 me asking you that question in your deposition?
24 A. I don't specifically, but I'm not denying
25 that it was asked.

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1 Q. Okay. If I showed you your deposition, would


2 that help you?
3 A. Yes, I guess it would.
4 THE COURT: Mr. Levine, what is the relevance
5 of this question?
6 MR. LEVINE: Just to acknowledge the history
7 of flooding in the area, Your Honor.
8 That's okay. I can move on.
9 Q (By Mr. Levine) Mr. Stewart, you testified
10 that you applied for money from FEMA for damage
11 resulting from Harvey; correct?
12 A. Yes.
13 Q. You received over $19,000 in financial
14 assistance from FEMA; correct?
15 A. 19,000? I recall 16,000 and three payments
16 of 500, but I'm not sure that came from FEMA.
17 MR. EASTERBY: Your Honor, just for the
18 record, we would maintain our objection to the
19 relevance of FEMA payments and understand the Court's
20 prior orders just for the record. Thank you.
21 THE COURT: That objection is acknowledged
22 but overruled.
23 MR. LEVINE: Your Honor, if we could pull up
24 PX471. That's okay.
25 Q (By Mr. Levine) So, Mr. Stewart, regarding

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1 the -- the FEMA money that you received, you received


2 over $16,000; is that correct?
3 A. Yes.
4 Q. All right. You testified earlier that, when
5 you left your home, you went south on Eagle Trail
6 Drive; is that correct?
7 A. Yes, southeast.
8 Q. Okay. And if we're facing your house, is
9 south-southeast to the left?
10 A. To the left.
11 Q. Okay. And, during Harvey, did the home one
12 house down to the right flood?
13 A. Yes.
14 Q. Okay. Did the home two houses down on the
15 right flood?
16 A. Yes.
17 Q. Okay. Did the home three houses down on the
18 right flood?
19 A. I'm not sure. I don't think so.
20 Q. Okay. And the homes going all the way down
21 the rest of the street beyond that third one, those did
22 not flood either; correct?
23 A. On my side of the street, I don't think so.
24 MR. EASTERBY: Objection. Vague. Is he
25 talking about, going north, they're flooding, or going

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1 south, they're flooding?


2 THE COURT: Mr. Easterby, Mr. Stewart seems
3 to understand the question.
4 MR. EASTERBY: Okay. I'm sorry, then.
5 Q. (By Mr. Levine) If I'm looking at your
6 house --
7 A. Uh-huh.
8 Q. -- and the homes to the right, is that north
9 on your street?
10 A. Yes. Northwest.
11 Q. Okay. Thank you.
12 And did you get the answer to the previous
13 question? Thank you.
14 Your Honor, may I check with counsel?
15 Thank you.
16 THE WITNESS: Yes.
17 Q (By Mr. Levine) Mr. Stewart, thank you.
18 Your Honor, I pass the witness.
19 THE COURT: Thank you.
20 Mr. Easterby?
21 MR. EASTERBY: Very quickly, Judge.
22 REDIRECT EXAMINATION
23 BY MR. EASTERBY:
24 Q. All right. Mr. Stewart, I have this
25 demonstrative, which is this massive ZIP Code map of

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1 Harris County. Let's see.


2 Can you see Addicks Reservoir?
3 A. Yes.
4 Q. Okay. Y'all are kind of in this area right
5 here?
6 A. Right.
7 Q. So I used to live in a house down here in
8 Bellaire area. Are you familiar with that area?
9 A. I do.
10 Q. My house got flooded three times there.
11 So are you aware, in Harris County, there's
12 certain areas that are low-lying and flood all the time
13 and some that have high ground and no history of
14 flooding?
15 A. Yes.
16 MR. EASTERBY: No further questions, Your
17 Honor.
18 THE COURT: May the Court excuse Mr. Stewart?
19 MR. EASTERBY: Yes, sir, Your Honor.
20 MR. LEVINE: Yes, Your Honor. Thank you.
21 THE COURT: Mr. Stewart, thank you for your
22 testimony today, and thank you for your patience in
23 awaiting your testimony.
24 THE WITNESS: Thank you.
25 THE COURT: Thank you indeed.

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1 Mr. Charest, where do we go from here?


2 MR. CHAREST: The next witness on this table
3 is Kurt Wind, and I think he's going to be presented by
4 Mr. Mitby, who's in the gallery now, Your Honor.
5 THE COURT: Mr. Wind, if you would approach
6 the bench to be sworn.
7 Thereupon--
8 KURT WIND
9 was called as a witness, and having been first duly
10 sworn, was examined and testified as follows:
11 THE WITNESS: I do.
12 THE COURT: Please be seated in the witness
13 stand. Once you're there, it would be appreciated if
14 you would state your full name for the record.
15 THE WITNESS: My name is Kurt Wind.
16 THE COURT: Mr. Mitby. Is that right?
17 MR. MITBY: That's correct, Your Honor. May
18 I proceed?
19 THE COURT: Yes.
20 MR. MITBY: May it please the Court, before I
21 start examining the witness, I would like the Court's
22 permission to hand him a copy of the trial exhibits
23 that we plan to use.
24 THE COURT: Yes.
25 DIRECT EXAMINATION

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1 BY MR. MITBY:
2 Q. Mr. Wind, what do you do for a living?
3 A. I'm self-employed in the energy field, oil
4 and gas.
5 Q. Where do you live?
6 A. 5306 Sunbright Court.
7 Q. Is that in Harris County?
8 A. Yes.
9 Q. How long have you lived there?
10 A. We have lived there for 29 years.
11 Q. And did you buy the house in 1990?
12 A. Yes, we did.
13 Q. Were you at 5306 Sunbright Court during
14 Harvey?
15 A. Yes, we were.
16 Q. Are you married, sir?
17 A. I am. Married to my wife, Jean, 40 years.
18 Q. And how long have you lived in the Houston
19 area?
20 A. Born and raised Houstonian. So lived here
21 for a little over 60 years.
22 Q. Do you own your home on Sunbright Court?
23 A. Yes, we do.
24 Q. Is that your primary residence?
25 A. Yes.

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1 MR. MITBY: I would like to introduce Joint


2 Exhibit 41. If we could put that on the screen.
3 Before I move admission I will ask a couple of
4 foundation questions.
5 Q. (By Mr. Mitby) Mr. Wind, is this the deed to
6 your property, the exhibit that's on the screen?
7 A. Yes.
8 MR. MITBY: Your Honor, I move admission of
9 Joint Exhibit 41.
10 MS. HELD: No objection. And this is Jessica
11 Held.
12 THE COURT: Ms. Held, thank you.
13 Admitted.
14 (Whereupon, Joint Exhibit 41 was
15 admitted into evidence.)
16 Q. (By Mr. Mitby) Please describe your property
17 for the Court.
18 A. It's a two-story home, five bedrooms,
19 swimming pool.
20 Q. In which subdivision in Houston is your
21 property in?
22 A. It's in Twin Lakes.
23 Q. And is Twin Lakes a master-planned community
24 that has deed restrictions?
25 A. Yes.

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1 Q. I'm going to show you an image that has


2 previously been admitted as Plaintiffs'
3 Exhibit 2036-29.
4 If we could have that on the screen, please.
5 This was taken on a NOAA flyover on August
6 30, 2017, by the federal government.
7 Do you recognize this image?
8 A. Yes, I do.
9 Q. I'm going to show you an image that has
10 previously been admitted as exhibit -- Plaintiffs'
11 Exhibit 2036-30.
12 Can you tell us what this photo depicts, if
13 you know?
14 A. This picture depicts our home where it says
15 Wind at the end of the cul-de-sac. The entire area,
16 Twin Lakes and Lakes on Eldridge across the street, was
17 completely under water.
18 Q. Why did you decide to purchase a home in Twin
19 Lakes?
20 A. Twin Lakes was a new subdivision that was
21 being built. The developer was a very well-known
22 individual in the Houston area, former mayor of
23 Houston, Bob Lanier, and the builder, prominent, very
24 well-respected builder, Vincent Kickerillo.
25 Q. Why did you decide to purchase the particular

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1 home you did on Sunbright Court?


2 A. Well, it was at the -- close to the front of
3 the entrance of the subdivision, so it was easy in,
4 easy out. It was a cul-de-sac street that was nice and
5 quiet, private for young children to play. The
6 clubhouse was close by, end of the street, which was
7 nice for us because we have a visually impaired,
8 legally blind daughter.
9 Q. And did you make investments in your property
10 after you initially purchased the home?
11 A. Numerous times. We added a pool in the
12 backyard in 2000. We had a mini makeover, I guess, in
13 2008. And somewhere around 2012, we had an extensive
14 remodel, replaced all the floor -- all the flooring and
15 appliances and granite, et cetera, et cetera, and
16 actually added a mother-in-law suite at the time. And
17 then, of course, we had a do-over after Harvey.
18 Q. Okay. And at the time you bought the home
19 and when you made the improvements you just described,
20 did you expect your property value to increase over
21 time?
22 A. Absolutely.
23 Q. And before Harvey, had the value of your home
24 increased?
25 A. Yes, before Harvey.

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1 Q. Now, you said you lived in Houston your whole


2 life.
3 When you were in the market for a home, did
4 you know that certain parts of Harris and Fort Bend
5 counties had flooded in the past?
6 A. Well, being born and raised in Houston, we've
7 seen street flooding numerous times all over town. We
8 have never, in the 29 years -- 29-plus years we lived
9 in Twin Lakes, never seen water accumulate in streets,
10 and that includes the Memorial Day, the Tax Day Flood,
11 and Allison, all of those.
12 Q. And when you purchased your home in 1990,
13 were you concerned that it might be at risk for
14 flooding?
15 A. Not at all.
16 Q. And has your home ever been in the 100-year
17 or 500-year floodplains?
18 A. No.
19 Q. And you said that you were in your home at
20 the time of the Memorial Day, Tax Day, and Allison
21 floods.
22 To your knowledge, did any home in Twin Lakes
23 flood during those events?
24 A. None of them.
25 Q. Okay. Was there water in the street during

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1 those events?
2 A. No. We have -- there's actually four
3 retention ponds that were built in that subdivision
4 initially, and they did a very good job of keeping the
5 streets dry.
6 Q. Okay. Now, you carry flood insurance on your
7 property, don't you?
8 A. Yes, we do.
9 Q. Why do you do that if you didn't feel you
10 were at risk?
11 A. We've had flood insurance in every home we've
12 owned and certainly at Twin Lakes. Just seems to be
13 the smart thing or prudent thing to do. I mean, you
14 could flood just from street construction or backed-up
15 culvert or something from debris or trash in the line.
16 To me, flood insurance is no different than
17 having health insurance or car insurance or umbrella
18 policy, which we carry all of those.
19 Q. And before Harvey had you ever seen
20 stormwater go above the curb anywhere in your
21 neighborhood?
22 A. Never.
23 Q. And had any property, to your knowledge, in
24 Twin Lakes ever flooded before Harvey at any time?
25 A. No.

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1 Q. Now, when did you first learn that your home


2 is inside the Addicks Reservoir?
3 A. I have never understood my home was inside
4 the reservoir.
5 Q. And when did you learn that the government
6 could store its impounded stormwater in homes behind
7 the Addicks Dam?
8 A. I never did understood that they were -- had
9 the permission to do it until Harvey. And, you know,
10 obviously, they did.
11 Q. Now, did the government ever disclose to you
12 on any prior occasion before Harvey that your home was
13 inside the reservoir or subject to flooding because of
14 its location near the dam?
15 A. Never. Never seen a notice of any kind.
16 Q. Were you in court this morning?
17 A. Pardon?
18 Q. Were you in court this morning?
19 A. Yes.
20 Q. Did you hear the testimony about mailings and
21 hearings and other things that the government contends
22 provided some people with notice?
23 A. I did. I was quite surprised to hear that.
24 We've never seen any of those documents.
25 Q. Did you ever receive any kind of mailing

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1 about the risk of flooding in your location of the


2 reservoir?
3 A. No.
4 Q. Did you ever receive a notice of a hearing or
5 public event related to your location in the reservoir?
6 A. I never saw one. I never had a neighbor
7 indicate that they have seen one either.
8 Q. Does the government have a flooding easement
9 on your property?
10 A. They do not.
11 Q. And did you get any deals or price reductions
12 on your home because of its location in the reservoir?
13 A. No.
14 Q. Now, before this trial, did you know that the
15 government did a first-floor elevation survey of your
16 home in 2003 or 2004?
17 A. I heard that the other day in the trial, but
18 I was unaware that they did.
19 Q. Okay. And were you aware that the government
20 had a map showing that your house was one of the houses
21 they planned to occupy with their impounded
22 floodwaters?
23 A. No.
24 Q. Where were you when Harvey hit Houston?
25 A. At home.

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1 Q. And could you describe for the Court what you


2 experienced.
3 A. Well, I don't think we were, unlike most
4 Houstonians, glued to the TV watching the storm come in
5 and destroy Rockport and then come settle over the
6 Houston area. And then we heard the news. They
7 announced that Twin Lakes was one of the subdivisions
8 that was going to be flooded. And we were in shock
9 when we heard that news because we never had water
10 there.
11 And so my wife and I began gathering
12 everything we could physically pick up and carry
13 upstairs to get it out of the potential of flood damage
14 because we didn't know. We didn't know if we were
15 going to get a half of an inch of water in the house or
16 10 feet. So we just picked up everything we could
17 possibly carry, the two of us, and got it and got it
18 out of there.
19 And then we waited until later that afternoon
20 to see if it was any other news that maybe -- where
21 they changed their mind and the house -- the
22 neighborhood wasn't going to flood. And then later
23 that afternoon, our son had called and said, "You need
24 to get out now."
25 So we -- we chose to take the higher

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1 elevation vehicle to evacuate our home and started our


2 trek across Houston to go to their apartment over near
3 the Galleria area and spent the next month there living
4 with them sleeping on air mattress.
5 Q. Now, when you evacuated, was there any water
6 inside your home?
7 A. Not at the time.
8 Q. Could you describe what you observed in the
9 neighborhood when you evacuated?
10 A. We left around 7:00 that evening, and we were
11 just beginning to see water crest over the front lake
12 and into the street along Tropicana.
13 Q. Okay. And just to be clear, which day did
14 you evacuate?
15 A. We evacuated on Monday, the 28th.
16 Q. Okay. And when you evacuated, was there any
17 street flooding in Twin Lakes?
18 A. No.
19 Q. After you evacuated, when did you first
20 return to your home?
21 A. We tried to get in touch with neighbors on
22 that Tuesday to see if any of them were still around to
23 see if they could tell us if, in fact, our home took
24 any water. And we were able to reach one of the
25 neighbors a couple of doors down, and he indicated that

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1 he had evacuated earlier that day, that he noticed that


2 it looked like water had -- was certainly up on our
3 porch and looked like it had entered the house, but he
4 wasn't sure.
5 So we -- I'm sorry. The rest of the
6 question?
7 Q. Yeah. Yes, I think you did. When you -- and
8 then what was it like the day that you returned, you
9 returned on that Wednesday?
10 A. We returned on Wednesday, the 30th. And
11 we -- we drove back over. We couldn't -- we could not
12 gain access to the subdivision because it was
13 completely impassable with the high water on the
14 streets. Eldridge and Tanner and the surrounding areas
15 of Clay, obviously, were well under water.
16 And so we entered the north end of the
17 subdivision called Concord Bridge and were able to
18 navigate through some of their flooded streets to about
19 the midpoint of their neighborhood, parked at their
20 clubhouse, and got out and started the trek across
21 their neighborhood and the nasty stormwater.
22 And we had to enter the rear of our
23 subdivision through an emergency gate, and the water
24 was about waist deep as we walked through the
25 neighborhood. And I'll never forget my son asking me,

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1 as we were walked through the waist-deep water, if we


2 had to be worried about snakes and flesh-eating
3 bacteria and chemicals and everything else that was in
4 the water, which was nasty.
5 Fortunately, we were picked up by a very nice
6 group of people that had a rescue boat in the
7 neighborhood from Hedwig Village, and they picked us up
8 and ferried us across the subdivision from the
9 northwest corner all the way across the subdivision to
10 the southeast corner by boat. And it was just a
11 surreal experience to travel across your entire
12 neighborhood by boat.
13 Q. Did you take any videos while you were on the
14 boat?
15 A. Yes, we did.
16 MR. MITBY: I'd like to have Wind Exhibit 21
17 at 3903, please.
18 (Whereupon video was played.)
19 MR. MITBY: You could just pause that.
20 Q. (By Mr. Mitby) Mr. Wind, did you take this
21 video that's playing?
22 A. I took this video as well as all the pictures
23 of the damages in our home and all the videos that we
24 had presented.
25 This particular video, if I could, it's -- we

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1 had already traveled across the subdivisions, as I


2 said, from the northwest corner to the southeast. This
3 is driving in the boat down Tropicana, which is
4 adjacent to the clubhouse and tennis court area that
5 was under water. And what you'll see in this
6 photograph is we will turn right onto our street,
7 Sunbright Court, and my house is the very last one at
8 the end of the cul-de-sac. And you'll see that I
9 fumbled with my phone because I'm just kind of losing
10 it a little bit when I see that my house is under
11 water.
12 Q. And Mr. Wind, does this video fairly and
13 accurately represent what you saw when you returned to
14 your home on August 30th, 2017?
15 A. Absolutely.
16 MR. MITBY: Your Honor, I move admission.
17 MS. HELD: No objection.
18 THE COURT: Thank you. It's admitted.
19 (Whereupon, Wind Exhibit 21-3903
20 was admitted into evidence.)
21 MR. MITBY: Let's play the video, please.
22 (Whereupon video was played.)
23 Q. (By Mr. Mitby) Mr. Wind, while the video is
24 playing, can you describe what it's showing?
25 A. This is my -- this is my street that we're

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1 turning down right now, and my home is at the very end


2 of the cul-de-sac. That's where I kind of lost it
3 there and just dropped the phone.
4 Q. Then, after you reached your house, did you
5 go inside?
6 A. Yes, we did. The boat pulled up actually
7 into the driveway, and we hopped off the boat. And the
8 water was still -- I don't know -- above our calf, I
9 guess, at that point in the drive. And walked up
10 towards the house and opened the door to the kitchen
11 and discovered that the house, in fact, was wet.
12 Q. Okay. And do you know the depth of the
13 stormwater inside the house?
14 A. When we got there, it was about ankle-deep.
15 Q. And did you take any videos?
16 A. Yes, we did.
17 MR. MITBY: Could I have Wind Exhibit 21 at
18 3904, please.
19 Q. (By Mr. Mitby) Is this a video you took,
20 Mr. Wind?
21 A. Yes. This is -- I was looking at the
22 mother-in-law room. They're checking to see what was
23 wet. And -- and then we walked through the entire
24 house to see what we had forgotten to pick up to take
25 upstairs that was damaged and just trying to make an

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1 initial assessment of things.


2 And while we were in the house, my son
3 hollered at me and he said, "Dad, your -- something's
4 on fire in your study."
5 I said, "What are you talking about?"
6 So, I walked down to the study, and the room
7 was full of smoke. And it was a surge protector that
8 was hanging down in the water that was smoldering and
9 melting from being contaminated with wet water.
10 And so we were -- I said, "Be still." I go
11 start shutting off all the power because the power
12 hadn't tripped in our home. And so I went to power --
13 the breaker box and start turning off all the power.
14 So we were very lucky that none of us were injured or
15 electrocuted.
16 Q. And does this video fairly and accurately
17 reflect what you saw?
18 A. Certainly.
19 MR. MITBY: Can we play the video.
20 And, Mr. Wind, I'd like you to describe what
21 we're seeing.
22 (Whereupon video was played.)
23 THE WITNESS: I'm standing in the bathroom of
24 that particular bedroom. It's a guest room, as I said.
25 I'm walking towards the family room where our sofas and

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1 chairs and such were, rugs, et cetera, looking across


2 the kitchen. And everything was wet. Everything on
3 the floor, obviously, and -- and the cabinets and
4 the -- the Sheetrock behind the -- all the millwork was
5 wet and starting to wick up into the walls, and the
6 wicking of the -- of the water into the Sheetrock is
7 what causes so much of the damage.
8 Q. (By Mr. Mitby) And how was your home damaged
9 as a result of the floodwater?
10 A. Well, the water was in our home for, I
11 think -- I don't know -- two or three days. And so
12 with the Sheetrock -- the way they install Sheetrock in
13 most homes, it goes all the way down to the concrete,
14 typically, and it acts as a sponge.
15 So it started wicking up behind all the
16 cabinets. And so we -- we had to -- actually, at first
17 we thought we were going to just drill some holes in
18 the bottom of the cabinet and see if there was any
19 mold. And once we did that, we had looked up inside
20 with mirrors and cameras and things and said it doesn't
21 look real good. So we went ahead and pulled one
22 cabinet. And then we found that, behind the cabinets,
23 where the cabinet butts up against the wall, there was
24 already mold growing.
25 So we ended up pulling everything -- all the

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1 cabinets from counter height -- lower counter height to


2 the floor out of the house, and -- which meant all the
3 granite was pulled and most of it was broken when they
4 pulled it out and had to rebuild all the cabinetry, the
5 millwork, the floors we had just installed five years
6 prior. As we said, we had an extensive remodel. And
7 we had to pull the American walnut wood floors out and
8 the natural stone travertine floors came out. And we
9 replaced everything with porcelain tile.
10 Q. And did the water damage your appliances?
11 A. Yes, in the kitchen.
12 Q. Did you have to replace all of your kitchen
13 appliances?
14 A. Not all of them.
15 Q. But some of them?
16 A. Yes.
17 Q. And did the floodwater damage your car?
18 A. Yes. That was the car we left behind, my --
19 my Lexus, we lost it. It was totaled.
20 Q. Okay. Did the floodwater damage any of your
21 other personal property?
22 A. Certainly. We had clothing and electronics
23 that were in closets and my office, et cetera, personal
24 belongings that were damaged we had to throw away.
25 Q. How long did it take you to repair your home?

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1 A. It took 11 months.
2 Q. And how long were you out of your home
3 starting from the time of Harvey to when the repairs
4 were completed?
5 A. We -- how long were we out of our home?
6 Q. How long?
7 A. We were out of our home 11 months.
8 Q. Where did you live during that time?
9 A. We lived in a -- well, after the first month
10 with my son in his apartment, we were able to get a
11 small garage apartment that we were able to live in.
12 And so we stayed there for the next ten months.
13 Q. Okay. And during the time you were out of
14 your house, I presume you were not able to enjoy your
15 home in the normal and customary manner?
16 A. No.
17 Q. And --
18 A. Not at all.
19 Q. -- would you say you're able to enjoy your
20 home in the normal and customary manner today after the
21 flood?
22 A. It's good to be home because it is home.
23 We've lived there for 29 years and had hoped to grow
24 old and retire out there. But it's -- it's not the
25 same. It never will be the same. The subdivision has

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1 a different feel to it. And, you know, driving in


2 every time you come into the subdivision you can
3 just -- my wife and I both can just see the floodwaters
4 still there in the streets. It's just -- it's
5 something that's very applicable to you if you've ever
6 been through a flood.
7 Q. Now, you're making a claim under the Fifth
8 Amendment for taking of property. In your own words,
9 what is it that the government took from you?
10 A. What did the government take from me? They
11 took away personal possessions. They took away use of
12 my home. They took away time that I had to take away
13 from my business to spend remediating and -- and
14 rebuilding my house. They took away the potential
15 equity and/or the appreciation that we had hoped to
16 achieve in the nice development that we invested all
17 that money in.
18 Q. And before I conclude, I want to move
19 admission of the last video that we showed, which is
20 Wind Exhibit 29 -- 21 at 3904.
21 MS. HELD: No objection, Your Honor.
22 THE COURT: Admitted.
23 (Whereupon, Wind Exhibit 21-3904
24 was admitted into evidence.)
25 MR. MITBY: I also understand that

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1 Plaintiffs' Exhibit 2036-29 and 2036-30 were not


2 previously admitted. So I will also move for admission
3 of those exhibits as well.
4 MS. HELD: No objection, Your Honor.
5 THE COURT: What specific numbers in PX2036
6 are you talking about, Mr. Mitby?
7 MR. MITBY: It's 29 and 30. It was two NOAA
8 aerial maps that we showed a moment ago.
9 THE COURT: Those are admitted.
10 (Whereupon, Plaintiffs' Exhibit 2036-29
11 and 2036-30 were admitted into
12 evidence.)
13 THE COURT: Thank you, Ms. Held.
14 Q (By Mr. Mitby) Mr. Wind, do you have any
15 videos of your neighborhood after Harvey?
16 A. Sorry. Say again.
17 Q. Do you have -- did you take any videos of
18 your neighborhood after Harvey?
19 A. Yes.
20 Q. I'd like to show you Wind Exhibit 21 at 3908.
21 Can you take -- did you take this video?
22 A. Yes. I took all the videos.
23 Q. And did you take it on or about
24 September 9th, 2017?
25 A. Sounds about right.

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1 Q. Does it fairly and accurately show what you


2 saw in your neighborhood?
3 A. Yes. This was the -- probably the early
4 stages of the neighbors on my street beginning to pull
5 out trash and -- and construction debris when they were
6 tearing out all the Sheetrock and furniture and rugs
7 and so forth.
8 MR. MITBY: I'd move admission of the video,
9 Your Honor.
10 MS. HELD: No objection, Your Honor.
11 MR. MITBY: Could we play the video?
12 THE COURT: Yes.
13 (Whereupon, Wind Exhibit 21-3908
14 was admitted into evidence.)
15 Q (By Mr. Mitby) And then, Mr. Wind, please
16 tell us what we're seeing.
17 (Whereupon video was played.)
18 THE WITNESS: We're driving down from the
19 beginning of my street. It's a short cul-de-sac. And
20 every home on our street was flooded. And, as I said,
21 this was kind of the early stages of the remediation
22 process, because this was September 9th, I believe it
23 was.
24 And, over the course of the next coming
25 weeks, the trash got so high you literally could not

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1 see the front doors of the houses when you drove down
2 the street, people's personal belongings and furniture
3 and flooring, Sheetrock, insulation, just nasty stuff.
4 Q (By Mr. Mitby) If you knew in 1990 what you
5 know today, would you still have decided to purchase
6 your home?
7 A. Absolutely not.
8 Q. And why not?
9 A. Going through what we just went through over
10 the last year and a half, almost two years now, was
11 probably one of the most traumatic experiences my wife
12 and I have ever experienced. And I would never want to
13 have to put my wife or my family back through that.
14 And, unfortunately, we feel trapped because
15 we're in this subdivision that we're hearing all this
16 discussion that everybody's telling us that it's most
17 likely going to happen again.
18 And what do you do with your investment when
19 you can't sell it? You would feel horrible selling
20 your home, if you could find somebody to buy it, to
21 somebody else and have to put them through that. So
22 it's -- it's a very emotional experience.
23 Q. Thank you, Mr. Wind. No further questions.
24 THE COURT: Thank you, Mr. Mitby.
25 Ms. Held, cross-examination.

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1 MS. HELD: Thank you, Your Honor.


2 CROSS-EXAMINATION
3 BY MS. HELD:
4 Q. Good afternoon, Mr. Wind.
5 A. Hi. How are you?
6 Q. I would like to bring up Defendants'
7 Exhibit 833.
8 And it's my understanding this has already
9 been admitted into evidence.
10 Mr. Wind, you had testified earlier where you
11 had located your property on a map. Do you see your
12 property on this map here?
13 A. It's a little small, but I believe I see it,
14 yes.
15 Q. And now I'd like to turn to Defendants'
16 Exhibit 844.
17 MS. TARDIFF: 334?
18 MS. HELD: 834.
19 Q (By Ms. Held) And are you also able to
20 locate your property on this map?
21 A. Yes, at the end of the small purple shape on
22 the left.
23 Q. Thank you.
24 Now, Mr. Wind, you had a flood insurance
25 policy in place on your home on Sunbright Court at the

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1 time of Hurricane Harvey; correct?


2 A. Repeat that.
3 Q. You had a flood insurance policy --
4 A. Yes.
5 Q. -- in place on your home on Sunbright Court
6 at the time of Hurricane Harvey?
7 A. Correct.
8 Q. And your flood insurance policy, it provided
9 coverage for flood damage up to 250,000 for structures?
10 A. Yes.
11 Q. And 100,000 for contents?
12 A. Correct.
13 Q. And you filed a claim under your flood
14 insurance policy for flood damage to your home from
15 Harvey floodwaters; correct?
16 A. To the flood insurance carrier, yes.
17 Q. And, as a result of that claim, you received
18 a payment from your flood insurance policy for
19 $350,000; correct?
20 MR. MITBY: Objection, Your Honor, on the
21 grounds of relevance.
22 THE COURT: Overruled.
23 THE WITNESS: Yes.
24 Q (By Ms. Held) And, Mr. Wind, you discussed a
25 2007 Lexus in your earlier testimony?

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1 A. Yes.
2 Q. And you had an insurance policy on the 2007
3 Lexus in place at the time of Hurricane Harvey;
4 correct?
5 A. Correct.
6 Q. And you filed a claim under that car
7 insurance policy for flood damage to your car from
8 Harvey floodwaters; correct?
9 A. Yes.
10 Q. And, as a result of that claim, you received
11 a payment from your car insurance policy for
12 approximately $21,000?
13 A. Correct.
14 MS. HELD: That's all I have, Your Honor.
15 THE COURT: Thank you.
16 Mr. Mitby, redirect?
17 REDIRECT EXAMINATION
18 BY MR. MITBY:
19 Q. Mr. Wind, notwithstanding these insurance
20 payments, were you made whole by insurance in this
21 case?
22 A. No.
23 MR. MITBY: Nothing further, Your Honor.
24 Thank you.
25 THE COURT: Thank you.

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1 May the Court excuse Mr. Wind?


2 MR. MITBY: Yes, Your Honor.
3 THE COURT: Ms. Held?
4 MS. HELD: Yes, Your Honor.
5 THE COURT: Mr. Wind, thank you for coming.
6 Thank you for testifying today, and thank you for your
7 patience in waiting to testify.
8 THE WITNESS: Thank you.
9 MR. EASTERBY: Your Honor, we would call
10 Mr. Juan Giron, G-I-r-o-n.
11 THE COURT: Mr. Giron, if you would stop
12 about right there and raise your right hand to be sworn
13 as a witness.
14 Thereupon–
15 JUAN CARLOS GIRON VACQUEZ,
16 was called as a witness, and having been first duly
17 sworn, was examined and testified as follows:
18 THE WITNESS: Yes, Your Honor.
19 THE COURT: Please be seated in the witness
20 stand. Once you're there, if you'll state your full
21 name for the record, that would be appreciated.
22 THE WITNESS: My full name is Juan, J-u-a-n;
23 Carlos, C-a-r-l-o-s; G-I-r-o-n, Giron; Vacquez,
24 V-a-c-q-u-e-z.
25 THE COURT: Thank you.

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1 DIRECT EXAMINATION
2 BY MR. EASTERBY:
3 Q. Good afternoon, Mr. Giron.
4 What do you do for a living?
5 A. I'm a financial advisor with UBS.
6 Q. Are you a married man?
7 A. Yes.
8 Q. Any kids?
9 A. Three grown sons.
10 Q. Are you from Texas originally?
11 A. No. I was born and raised in Mexico City,
12 Mexico.
13 Q. And did you come to Texas after that, or did
14 you go to another state first?
15 A. I have been in the United States for over
16 eight years. I came to Texas first.
17 Q. I see. How long have you lived in the Cinco
18 Ranch area that's behind the Barker Reservoir?
19 A. We moved in the area in August of 2005.
20 Q. Mr. Giron, where do you live today?
21 A. In a trailer on my driveway.
22 Q. And do you have an understanding as to how
23 long you'll be living in that trailer?
24 A. Well, FEMA called me, and they actually came
25 for the keys. So I gave them the keys already. I

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1 cannot pay almost $1,000 a month for the trailer. At


2 this point, I have a mortgage, I have a home equity
3 line of credit. I cannot afford that.
4 Q. Mr. Giron, is it your understanding that you
5 were one of the plaintiffs selected by the federal
6 government in this case to be a test property?
7 A. Yes.
8 Q. Did you have flood insurance when Harvey
9 came?
10 A. No.
11 Q. And you mentioned you have a mortgage on the
12 home on Cassidy Park Lane; is that right?
13 A. Yes.
14 Q. What's the address of that house, please?
15 A. 4310 Cassidy Park Lane in Katy, Texas 77450.
16 Q. Okay.
17 I'd like to put up Giron 1, please, Matt.
18 Mr. Giron, this is a deed of trust. I
19 believe it's dated October 31st.
20 When did you buy the house?
21 A. Yes, we bought it on October 31st.
22 Q. What year?
23 A. 2005.
24 Q. 2005?
25 A. Yes.

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1 Q. And has it been your primary residence since


2 that date?
3 A. Yes.
4 Q. Well, except for the trailer.
5 Why did y'all decide you wanted to buy the
6 house on Cassidy Park Lane?
7 MR. EASTERBY: I'm sorry, Judge. We would
8 offer Giron 1 into evidence.
9 MS. SANTACRUZ: Good afternoon, Your Honor.
10 Since this is my first time appearing, I'm going to
11 introduce myself.
12 My name is Mayte, spelled M-a-y-t-e. Last
13 name is Santacruz.
14 THE COURT: Spell it again.
15 MS. SANTACRUZ: First name M-a-y-t-e. And
16 the last name is Santacruz, S-a-n-t-a-c-r-u-z.
17 THE COURT: Say again. Just pronounce it.
18 MS. SANTACRUZ: Santacruz.
19 THE COURT: What?
20 MS. SANTACRUZ: Santacruz.
21 THE COURT: So if I call you Ms. Santacruz,
22 that's satisfactory to you; right?
23 MS. SANTACRUZ: It is, Your Honor.
24 THE COURT: Thank you.
25 MS. SANTACRUZ: And we have no objection to

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1 the admissibility of this exhibit.


2 THE COURT: Admitted.
3 (Whereupon, Plaintiffs' Exhibit 1 was
4 admitted into evidence.)
5 Q (By Mr. Easterby) So, Mr. Giron, when y'all
6 were looking to buy a house, why did y'all decide to
7 buy the house on Cassidy Park Lane?
8 A. Well, at the time, we lived in California. I
9 was working for my company. And I worked in downtown
10 L.A. The company had made some changes, and they
11 wanted me to commute to San Diego because they were
12 going to transfer -- I mean, we were in Stevenson Ranch
13 because we've always liked suburbs and not big cities.
14 So we -- they did a lot of changes, and I
15 always had my wife's support. But, this time, it was a
16 little difficult. The boys were teens, and you know
17 how they are. So, basically, I talked to the CEO of
18 UBS International, because that's the area that I
19 worked for.
20 And they said, you know, "We estimate [sic]
21 you and we understand the situation. So go ahead and
22 choose anywhere you want to go." And I went -- what he
23 meant is you can go to New York, Florida, anywhere in
24 Texas.
25 I had previously talked to the manager in the

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1 Houston office. And that's why we decided to kind of


2 check on Houston. My wife and I checked the schools.
3 And we heard and -- that Katy, specifically, in Cinco
4 Ranch, had great schools, blue-ribbon schools. So
5 that's why we decided to move to Cinco Ranch, in the
6 area -- specifically to the area that would allow them
7 to get into Cinco Ranch High School.
8 Q. And did your kids end up going to Cinco Ranch
9 High School?
10 A. Yes.
11 Q. Are they all grown and graduated now?
12 A. Yes.
13 Q. Do you recall being deposed in this matter --
14 in this case?
15 A. Yes.
16 Q. Do you remember the government lawyer asking
17 you the same question about why you bought the house?
18 A. Yes, I do.
19 Q. You said you -- you wanted a happy life in
20 Katy, Texas. Do you remember that?
21 A. Right.
22 Q. Before you bought the house, did you look
23 into whether it had any kind of flooding issues?
24 A. Yes. Because when we first got into -- we
25 were in corporate apartments. My company paid for it.

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1 And when we decided to -- to go to Katy, immediately


2 after -- a few days after -- not immediately, but, I
3 mean, we faced -- it was Rita?
4 Q. Hurricane Rita?
5 A. Hurricane Rita, yes. And we had to leave,
6 basically, from the corporate apartments. We went to
7 San Antonio. It took us 14 hours to get there.
8 So, with that experience, we just said we
9 needed to have something safe. The real estate agent
10 that worked with us, Mrs. Poppy, she said, oh, you know
11 I -- I totally understand. I live in Katy for more
12 than 30 years. We've never flooded. So, for us, it
13 was important to hear that the house that we had chosen
14 was not somewhere that could be flooded.
15 Q. Right. I think, in your deposition, you
16 referred to the downtown Houston area as "a hurricane
17 bomb." Do you remember that?
18 A. Yes, I remember that. Because, you know, I
19 mean, we hear all these things. And then I -- I heard
20 some people in my office talking about some storms like
21 Allison. I mean, I'm not familiar. I just got there,
22 and -- but it was in the Houston area. So that's why I
23 said, well, we're in Katy.
24 Q. Understood. Mr. Giron, I'd like to show you
25 what's been marked for identification as Giron

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1 Exhibit 4.
2 If you could put that up, please, Matt.
3 Juan, this was shown to you in your
4 deposition. Do you remember this?
5 A. I do.
6 Q. And there's some writing up here at the top.
7 Do you recognize that handwriting?
8 A. Yes. It's mine.
9 Q. It's yours?
10 A. Uh-huh.
11 Q. Does this fairly and accurately depict the
12 area that's located up near your home at 4310 Cassidy
13 Park Lane?
14 A. Yes.
15 MR. EASTERBY: Your Honor, we'd move to admit
16 Giron No. 4 into evidence.
17 MS. SANTACRUZ: No objection, Your Honor.
18 THE COURT: Thank you, Ms. Santacruz.
19 Admitted.
20 (Whereupon, Giron Exhibit 4 was
21 admitted into evidence.)
22 Q (By Mr. Easterby) Just for some context,
23 Juan, this street right here is called South Mason
24 Road; correct?
25 A. Yes.

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1 Q. And if you follow my green pointer, you'll


2 see it goes north. And it crosses this tributary right
3 here. Do you see that?
4 A. Yes.
5 Q. And you've been here all week too like
6 everybody else; right?
7 A. (Witness nods head.)
8 Q. Yes?
9 A. Yes.
10 Q. Is this the Willow Fork diversion channel,
11 this area I'm pointing to right here?
12 A. Well, I'm -- you know, I don't know what it
13 is, but I -- I haven't driven for -- I mean, in that
14 area for many years.
15 Q. Okay. I mean, do you drive over that almost
16 every day?
17 A. Yes. Uh-huh.
18 Q. And as you proceed further north and then
19 start heading west and get closer to your house,
20 there's another bridge on South Mason up here; correct?
21 A. That is correct.
22 Q. And we've been calling this Upper Buffalo
23 Bayou. Do you see that?
24 A. Yes.
25 Q. And that -- that's -- in your backyard, if

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1 you go through your fence, there's a gate. And you


2 walk a few more steps, you're on the banks of Upper
3 Buffalo Bayou; is that right?
4 A. Right. I mean, you need to go up my house,
5 and then there is a road where we usually take walks --
6 or we used to take walks. And then down to the bayou,
7 but we never really went there.
8 Q. I see. Now, when you -- when Harvey hit, did
9 you have flood insurance?
10 A. No. I didn't get flood insurance because,
11 first of all, I got the mortgage with a very well-known
12 bank. And, you know, if you need flood insurance, they
13 will request flood insurance if that's a must. And it
14 wasn't a must.
15 And then I had all these people telling me
16 that, you know, I didn't -- not anything about the
17 flood insurance, but, I mean, that the area would never
18 flood. So I went ahead and didn't get it at first.
19 Q. At first. Was there a time when you did have
20 it?
21 A. Well, then I thought that I should get flood
22 insurance. And I went ahead and got it. I think that
23 I kept it for a couple of years. And, I mean, we went
24 through the storms, nothing happened. So I went ahead
25 and talked to one of my neighbors across the street,

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1 Latricia.
2 And I said, "Do you know, do we really need
3 flood insurance?" And she said, "Well, I've never
4 heard of anybody flooding here." So I -- I don't --
5 actually, she doesn't have it.
6 MS. SANTACRUZ: Objection, Your Honor.
7 Hearsay.
8 THE COURT: That is true. On the other hand,
9 the Court will take the testimony but ignore the report
10 of what Mr. Giron was told.
11 Q (By Mr. Easterby) Okay. Mr. Giron, I'd like
12 to show you -- before I ask you that, before I forget,
13 were you in Katy for the Tax Day 2016 storm?
14 A. Yes.
15 Q. Did your home have any flooding during that
16 storm?
17 A. No.
18 Q. Was that part of the decision-making for you
19 in terms of not having flood insurance?
20 A. No. I -- I believe I canceled it before
21 that.
22 Q. Already before?
23 Okay. I'd like to show you what's been
24 marked for identification as Giron No. 5. And this was
25 also shown in your deposition. It appears to be a

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1 October 19th, 2005, real estate listing for 4310


2 Cassidy Park Lane.
3 A. Yes.
4 Q. And you bought it on Halloween that same
5 year; right?
6 A. That's correct.
7 MR. EASTERBY: And if you go forward a page,
8 Matt, there's some pictures of the interior of the
9 home.
10 Q (By Mr. Easterby) Can you see those, Juan?
11 A. Yes.
12 MR. EASTERBY: One more page, please, Matt.
13 Q (By Mr. Easterby) Do these pictures fairly
14 and accurately depict what your home used to look like
15 before the Barker pool submerged it in late August of
16 2017?
17 A. Yes.
18 MR. EASTERBY: Your Honor, we would move to
19 admit Giron No. 5 into evidence.
20 MS. SANTACRUZ: Your Honor, no objection.
21 I would just note for the record that this is
22 also Joint Exhibit No. 76.
23 THE COURT: Joint Exhibit No. 76?
24 MS. SANTACRUZ: That is correct.
25 THE COURT: All right. The Court will admit

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1 Joint Exhibit 76.


2 (Whereupon, Joint Exhibit 76 was
3 admitted into evidence.)
4 Q (By Mr. Easterby) Okay. Juan, could you
5 just for the Court please describe your house in terms
6 of how many stories, how many bedrooms, basic terms
7 like that?
8 A. Yeah. We love the house. You know, fairly
9 big for the family. On the downstairs, we have two
10 full bedrooms, so the master's and another one that was
11 used for the previous owner as a mother-in-law suite.
12 Then we have the living room, dining room,
13 the kitchen with family room and dining area. It has
14 an office. Then downstairs we have about two full
15 bathrooms and one half.
16 Then, going upstairs, we have the landing and
17 we have three more bedrooms with a game room, and a --
18 (Interruption in proceedings.)
19 THE WITNESS: -- and a media room and three
20 bathrooms.
21 Q (By Mr. Easterby) And, Mr. Giron, I never
22 got to come to your house before the flood, but would
23 you say it was a nice house?
24 A. It was a very nice house, yes.
25 Q. Do you remember how much you paid for it back

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1 when you bought it?


2 A. I believe that I paid 530 at closing.
3 Q. Did you look at many houses when y'all were
4 looking in the Katy area?
5 A. We did.
6 Q. Do you feel like you got any kind of a
7 discount or a better deal because you were living in a
8 an area that apparently can be submerged by the federal
9 government?
10 A. No. I don't -- actually, after we looked for
11 some other properties, that was the most expensive
12 house, that we bought because we liked it.
13 Q. Let me show you what's been marked as Giron
14 No. 6. This was also marked in your deposition. This
15 appears to be a seller's disclosure notice that was
16 signed back on September 2nd, 2005.
17 And I'm looking at the very last page, Matt,
18 to get the date.
19 Do you see your signature and Anne's
20 signature down there at the bottom, Mr. Giron?
21 A. Yes.
22 Q. Do you recall seeing this document prior to
23 buying the house?
24 A. We saw the house, yes.
25 MR. EASTERBY: I'd like to –

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1 THE WITNESS: I mean the document. Sorry.


2 MR. EASTERBY: Your Honor, we'd move to admit
3 Giron No. 6 into evidence.
4 MS. SANTACRUZ: No objection, Your Honor.
5 THE COURT: Admitted.
6 (Whereupon, Giron Exhibit 6 was
7 admitted into evidence.)
8 Q. (By Mr. Easterby) So, if you look at the
9 second page of this Exhibit No. 6, down here on the
10 left, Section 3.
11 Just show them here, please, Matt.
12 Do you see the "Located in 100-year
13 floodplain"?
14 A. No.
15 Q. I mean, what box is checked next to that,
16 Mr. Giron?
17 A. You mean the "no"?
18 Q. Yes, that's what I mean, the "no."
19 A. Uh-huh.
20 Q. "Previous flooding into the structures,"
21 which box is checked, Mr. Giron?
22 A. "No."
23 Q. And "Previous flooding onto the property,"
24 same thing, "No"?
25 A. No.

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1 Q. Okay. And based on that, was it your


2 understanding that there had been no prior flooding at
3 this home?
4 A. Absolutely.
5 Q. And because it was not in a 100-year flood
6 zone, did your mortgage company require you to get
7 flood insurance?
8 A. No.
9 Q. Now, you've been here in trial. You've heard
10 about this plat language, I'm sure.
11 A. Uh-huh.
12 Q. Did you ever --
13 A. Yes.
14 Q. Did you ever see that plat language before
15 this litigation, Mr. Giron?
16 A. No.
17 Q. I'd like to show you what's been marked for
18 identification as Giron No. 7. This appears to be a
19 survey of your house dated -- well, do you recognize it
20 as a survey of your house?
21 A. Yes.
22 Q. I'm having trouble finding the date.
23 Is this something that you received during
24 the closing, Mr. Giron?
25 A. Yes.

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1 Q. I do see the date here now. It's right here,


2 October 26th, 2005; correct?
3 He'll zoom it in so you can read it.
4 A. Yes.
5 Q. And you see that, "State of Texas registered
6 professional surveyor" stamp on there?
7 A. Yes.
8 MR. EASTERBY: I'd like to admit Giron No. 7
9 into evidence, please.
10 MS. SANTACRUZ: No objection, Your Honor.
11 THE COURT: Admitted.
12 (Whereupon, Giron Exhibit 7 was
13 admitted into evidence.)
14 Q. (By Mr. Easterby) Juan, if you could --
15 Zoom back in right here, if you would, Matt.
16 -- just read into the record this sentence
17 that starts with "This property does not lie within
18 the."
19 A. "This property does not lie within the
20 100-year floodplain as per Firm Panel No. 48157C0085J,
21 map revision 01-03-1997, Zone X (shaded) based only on
22 visual examination of maps. Inaccuracies of FEMA maps
23 prevent exact determination without detailed field
24 study."
25 Q. Thank you.

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1 I'd like to put up what's been previously


2 admitted as Plaintiffs' Exhibit 62.
3 Now, in the prior testimony of Mr. Thomas, we
4 established that the Corps of Engineers had taken this
5 photograph of your home, I think, before you bought it
6 and has the elevation on the bottom right.
7 Do you see that?
8 A. Yes.
9 Q. Is that your house?
10 A. Yes, it is.
11 Q. Did you know ever that the federal government
12 had come by and done a elevation survey on the house?
13 A. No.
14 Q. Did the federal government ever tell you or
15 notify you that they would use your home as part of the
16 Barker flood control project?
17 A. No.
18 Q. Okay. Mr. Giron, what I'd like to do now is
19 show you a declaration that was submitted in this case
20 by a gentleman named Robert Harvey, who I don't believe
21 you've met. But let me hand you what's been marked for
22 identification as Harvey 1. And that's the guy's last
23 name; it's not the storm's name.
24 And, Mr. Giron, in this declaration
25 Mr. Harvey talks about his property being located near

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1 the South Mason Bridge with a clear line of sight of


2 the Willow Fork diversion channel bridge.
3 Do you see that? It's on the first page.
4 A. Yeah.
5 Q. And, we, I think, established earlier in the
6 context of Giron No. 4 that you drive over that bridge
7 nearly every day; right?
8 MS. SANTACRUZ: Counsel, do you happen to
9 have a copy of this, the declaration?
10 MR. EASTERBY: Oh, I'm sorry. Previously
11 produced, but I have an extra one. Here you go.
12 Q. (By Mr. Easterby) So, Mr. Giron, you're
13 familiar with that bridge and that overall area;
14 correct?
15 A. Yes.
16 Q. And just to be fair and clear, during Harvey
17 where were you?
18 A. We were in Austin, Texas.
19 Q. When did you leave Houston to go to Austin,
20 best as you can remember?
21 A. Don't recall the exact date, but, I mean,
22 before the storm hit the -- Texas.
23 Q. And I believe you came back on your birthday;
24 right?
25 A. That is correct.

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1 Q. What day is your birthday?


2 A. September the 3rd.
3 Q. Okay. So you weren't here. But if you look
4 with me at the page that's attached to Harvey
5 Exhibit 1, that says "Willow Fork Diversion Channel,
6 August 26th, 2017, 3:15 p.m."
7 That's good, Matt, just like that. Do that
8 split screen, if you would, that shows the bridge as
9 well. Next page with the bridge.
10 Okay. That's the bridge you drive over
11 almost every day; is that right?
12 A. Yes.
13 Q. Does --
14 MS. SANTACRUZ: Objection, Your Honor.
15 Mr. Giron says he wasn't there when this picture was
16 taken.
17 MR. EASTERBY: Well --
18 THE COURT: Ms. Santacruz, that is exactly
19 right. We have testimony by Mr. Giron, but we do not
20 have a basis for the photograph other than Mr. Giron's
21 recognition of the bridge in the area.
22 MR. EASTERBY: That's correct, Judge. This
23 is what we covered in pretrial, that we would not have
24 to have these actual individuals come into court to
25 sponsor these photographs, which have been produced in

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1 original format with the accompanying metadata that has


2 the date, time, latitude, longitude, so we wouldn't
3 have to bring another 16 witnesses in just to say these
4 are what they are.
5 MS. SANTACRUZ: Your Honor, we have no
6 objection as to the authenticity but the lack of
7 foundation for this witness.
8 MR. EASTERBY: Well, Your Honor --
9 THE COURT: Mr. Easterby, what is the point
10 of the photograph?
11 MR. EASTERBY: To get into evidence.
12 Seriously. I mean, we went through this in pretrial,
13 Judge. And I'm -- I'm sorry, but, short of bringing
14 all these witnesses in, he does have familiarity with
15 this area, he knows that bridge, and the photos are
16 what they are.
17 THE COURT: Well, I understand that. But, on
18 the other hand, what we need is testimony from
19 Mr. Giron about the damage to his home, not necessarily
20 the surrounding area.
21 MR. EASTERBY: I know. We would still move
22 to admit. Do I need to bring all these tributary
23 witnesses in? That's what I'm trying to figure out.
24 THE COURT: Why are you doing this?
25 MR. EASTERBY: Because I have to make a

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1 record.
2 THE COURT: I understand that, Mr. Easterby.
3 MR. EASTERBY: Okay. I'll move on, Your
4 Honor.
5 Q. (By Mr. Easterby) Okay. Mr. Giron, let's --
6 let's talk about something I think you are already
7 definitely familiar with, which is what it looks like
8 when you drive into your neighborhood from South Mason
9 Road.
10 So, Matt, could you put up the demonstrative
11 that we shared with the government that says "South
12 Mason Road south of Barker Dam's auxiliary spillways."
13 So, Mr. Giron, you're familiar with this
14 area, are you not?
15 A. Yes.
16 Q. And do you see that little gate there on the
17 right?
18 A. Yes.
19 Q. And you drive over this every single day to
20 go to work, don't you?
21 A. Yes.
22 Q. Did you ever know, when you were driving over
23 this little hump, that you were driving into the Barker
24 Reservoir?
25 A. No.

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1 Q. You see any signs that say "Now entering


2 Barker Reservoir"?
3 A. I've never seen it.
4 Q. And were you aware that this is actually part
5 of the embankment, what they call the auxiliary
6 spillway for the Barker Reservoir?
7 A. No, I wasn't.
8 Q. Does this fairly and accurately depict that
9 area that you drive on every single day?
10 A. Yes.
11 MR. EASTERBY: Your Honor, we would move to
12 admit this demonstrative as Giron Number 40.
13 THE COURT: Ms. Santacruz.
14 MS. SANTACRUZ: We have no objection as to
15 the demonstrative, Your Honor.
16 THE COURT: All right. Court is reluctant do
17 this, but I will admit it as a demonstrative; that is,
18 just to illustrate the record, not as evidence.
19 MR. EASTERBY: Fair enough, Judge.
20 (Whereupon, Giron Exhibit 40 was
21 admitted into evidence.)
22 Q. (By Mr. Easterby) Okay. So, Mr. Giron,
23 you -- y'all went to Austin. And, while you were gone,
24 were you checking with your neighbors back home to
25 check on the condition of your house?

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1 A. My wife did with our neighbors that live


2 across from our house.
3 Q. And are those the Walkers?
4 A. The Walkers, yes.
5 Q. And we had a site inspection last Wednesday,
6 and Judge Lettow and many others came to visit your
7 house.
8 Do you recall that?
9 A. Yes.
10 Q. And I believe your wife, Anne, talked about
11 Latricia Walker living across the street?
12 A. Yes, she does.
13 Q. Is it your understanding that during Harvey
14 Latricia Walker actually took some photographs of
15 y'all's house?
16 A. Yes.
17 MR. EASTERBY: Okay. Your Honor, I'd like to
18 hand the witness what's been identified as Plaintiffs'
19 Exhibit 3002. This was exchanged with counsel
20 yesterday. It is the declaration of Latricia Walker,
21 attesting to the accuracy and authenticity of the
22 photographs attached to Plaintiffs' Exhibit 3002.
23 Q. (By Mr. Easterby) Mr. Giron, if you'll look
24 at the first picture, that is attached --
25 MS. SANTACRUZ: Your Honor, we're going to

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1 object to this as being late and lack of foundation.


2 THE COURT: You object to the declaration?
3 MS. SANTACRUZ: Yes, Your Honor.
4 THE COURT: And the photograph, I take it?
5 MS. SANTACRUZ: And the photographs. Well,
6 he hasn't moved for the photographs yet.
7 THE COURT: I understand that, but we'll take
8 it a step at a time.
9 Mr. Easterby.
10 Q. (By Mr. Easterby) Is this your house,
11 Mr. Giron?
12 A. Yes, it is.
13 Q. I mean, presently there's a trailer where my
14 laser is pointing, right, but that's your house?
15 A. Yes.
16 Q. You see a date up there?
17 A. Yes.
18 Q. What's the date?
19 A. August 28, 2017.
20 Q. What's the time?
21 A. It says 9:47 a.m.
22 Q. And if we look at the front page of
23 Ms. Walker's declaration, sworn under penalty of
24 perjury, it indicates she took those photos using a
25 smartphone, which was set to automatic record the date

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1 and time of each photo, paragraph 2; correct?


2 A. Yes.
3 MS. SANTACRUZ: Objection. Leading, Your
4 Honor.
5 THE COURT: Sustained.
6 Q. (By Mr. Easterby) Is it correct, Mr. Giron,
7 that it's your understanding -- strike that.
8 Describe for me your knowledge of how the
9 photographs Ms. Walker took got into your possession or
10 your wife's possession.
11 A. She took the pictures, and then she send them
12 by text to my wife phone.
13 Q. And then did your wife send them to us? If
14 you know.
15 A. I understand she did.
16 Q. And then we produced them in this litigation
17 about 14 months ago?
18 A. Yes.
19 Q. Yeah.
20 MR. EASTERBY: Your Honor, we'd move to admit
21 Plaintiffs' Exhibit 3002 and the photographs attached
22 therewith.
23 MS. SANTACRUZ: Your Honor, we would object.
24 This declaration is hearsay. I would note that there
25 is a handwritten notation that is scratched "My son, JP

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1 Walker," and it was reprinted with "I." And, also,


2 this is hearsay.
3 THE COURT: The declaration is not
4 admissible. The photos might be. Let's proceed with
5 respect to the photos.
6 Q. (By Mr. Easterby) Okay. Well, so the
7 photograph that is Bates-stamped GIRON000081, it says
8 "Giron 19."
9 Do you see that?
10 Go to the bottom, if you would, Matt, so you
11 can see the sticker.
12 Fairly and accurately depicts your house;
13 correct?
14 A. Yes, it does.
15 Q. You have no reason whatsoever to doubt the
16 authenticity or accuracy of this photograph?
17 A. No.
18 Q. And if somebody wanted to know where the
19 water was on August 28th at 9:47 a.m. in your house,
20 you think this might be helpful evidence?
21 MS. SANTACRUZ: Objection, Your Honor.
22 That's leading.
23 THE COURT: Sustained.
24 Q. (By Mr. Easterby) Mr. Giron, are you aware
25 of any other photographs that depict your house and

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1 where the water was on August 28, 2017, at 9:47 a.m.


2 other than this?
3 A. No.
4 Q. And if you turn to the next page, which is
5 GIRON00083, could you kindly tell us again, does this
6 fairly and accurately depict -- you can't see your
7 driveway anymore, but you can see that white door;
8 right?
9 A. Right.
10 Q. Is that your back door?
11 A. No. That's our front door that is next to
12 the garage, and that's the music room.
13 Q. I see. And what's the date?
14 A. August the 29, 2017.
15 Q. And what is the time?
16 A. 12:41 p.m.
17 Q. Do you -- does it appear to you that the
18 water has gone up since the prior photograph, which was
19 the 28th of August, 2017, 9:47 a.m.?
20 MS. SANTACRUZ: Objection, Your Honor.
21 Leading.
22 THE COURT: Sustained.
23 MR. EASTERBY: Well, Your Honor, we move to
24 admit. I mean --
25 THE COURT: Well, admit -- admissibility is

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1 different from your reading question.


2 MR. EASTERBY: Oh, I understand, Judge.
3 Well, we move to admit the photographs, which
4 are Giron 81, 82, and 83, into evidence as Plaintiffs'
5 Exhibit 3002. We will conform it to remove
6 Ms. Walker's declaration if it's admitted.
7 MS. SANTACRUZ: No objection as to the
8 photos, but ...
9 THE COURT: I'm sorry. Say again.
10 MS. SANTACRUZ: No objections as to the
11 photos, Your Honor.
12 THE COURT: The photos are admitted, that is,
13 as Giron 81, 82, and 83. The declaration is not.
14 (Whereupon, Giron Exhibit 81 - 83
15 were admitted into evidence.)
16 MR. EASTERBY: Thank you, Your Honor.
17 Q. (By Mr. Easterby) And, Mr. Giron, in this
18 case I think you've seen some other of the plaintiffs
19 testify, have you not?
20 A. Yes.
21 Q. Let me hand you what's been marked as
22 Plaintiffs' Exhibit 2036-10. And this is a screenshot
23 from the NOAA website that has the August 30th
24 inundation photographs of the areas of behind Addicks
25 and Barker and also downstream.

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1 Is that your house that has the "Giron" over


2 it, Mr. Giron?
3 A. Yes.
4 Q. Do you see all that brown stuff that
5 surrounds it?
6 A. Yes.
7 Q. Do you have an understanding as to what that
8 is?
9 MS. SANTACRUZ: Your Honor, objection.
10 Leading.
11 THE COURT: Sustained.
12 Q. (By Mr. Easterby) Describe for the Court in
13 your own words what you're seeing in 2036-10, please.
14 A. What I see is my house and surrounded by
15 dirty water that, for some reason, got dumped into the
16 property.
17 MR. EASTERBY: Your Honor, we move to admit
18 Plaintiffs' Exhibit 2036-10 into evidence.
19 MS. SANTACRUZ: No objection, Your Honor.
20 THE COURT: Admitted.
21 (Whereupon, Plaintiffs' Exhibit 2036-10
22 was admitted into evidence.)
23 Q. (By Mr. Easterby) All right. Mr. Giron, I
24 think you said you came back on your birthday,
25 September 3rd.

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1 A. Yes.
2 Q. Was there any water in the house at that
3 time?
4 A. Yes.
5 Q. About how much?
6 A. I would say about 5 inches, around that.
7 Q. And did you try to take any high-water marks
8 or get an idea of what the highest level was?
9 A. We had some furniture that showed some
10 high-water marks, and it's about close to a foot of
11 water.
12 Q. And did y'all proceed to try to what we call
13 muck out the flooded house? Do you know what that
14 means?
15 A. Muck out? Like --
16 Q. Take out the drywall.
17 A. Oh, yes. Uh-huh. Well, we panicked. So
18 yeah. We had some neighbors helping us, and then we
19 hired some professional people to finish the job.
20 Q. Okay. Let me hand you what's been marked for
21 identification as Giron No. 26.
22 All right. Mr. Giron, 26 is a series of
23 photographs. And if you would just kindly flip through
24 them quickly. Let me know when you're finished,
25 please.

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1 A. Yes.
2 Q. Did these photos fairly and accurately depict
3 the interior and exterior portions of your home on
4 Cassidy Lane?
5 A. Yes.
6 MR. EASTERBY: Your Honor, we move to admit
7 Giron 26 into evidence.
8 MS. SANTACRUZ: Your Honor, it is our
9 understanding that this exhibit contains hundreds of
10 photographs. So we would just limit it for the
11 admissibility of this photographs that plaintiffs'
12 counsel just handed me.
13 MR. EASTERBY: Yeah, exactly, Judge. We
14 conformed it down to a more manageable set. Instead of
15 having 500, we tried to get it down to about 10 pages.
16 So we're admitting this document, 26, that I just
17 tendered into evidence.
18 THE COURT: You're saying, Mr. Easterby, that
19 Giron 26 consists of ten photographs or copies of ten
20 photographs?
21 MR. EASTERBY: I believe there's eight. One,
22 two, three, four, five, six --
23 THE WITNESS: Nine.
24 MR. EASTERBY: I'm counting eight. But, as
25 we go through them, I think we can establish a count.

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1 The answer to your question is, yes, it's


2 conformed to whatever is -- what I just handed out. If
3 counsel wants to have the entire exhibit put in, they
4 can certainly do that on cross. I would have no
5 objection to that.
6 THE COURT: But what you've proffered as
7 Giron 26 consists of eight photographs. That's what
8 the Court is trying to establish.
9 MR. EASTERBY: Yes, sir, that's correct.
10 THE COURT: Ms. Santacruz.
11 MS. SANTACRUZ: No objection as to that, Your
12 Honor.
13 THE COURT: Admitted.
14 (Whereupon, Giron Exhibit 26 was
15 admitted into evidence.)
16 Q. (By Mr. Easterby) Okay. Mr. Giron, the
17 first photograph we see, do you recognize either of the
18 two individuals in that hallway?
19 A. I see my wife, and then the other guy is one
20 of the people that helped to clean up the house.
21 Q. Do you know what this white thing is over
22 here that's behind the contractor?
23 A. Yeah. That's the door that goes through the
24 garage. So that's a hallway. We had all-wood floors
25 on the first floor and carpet.

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1 MR. EASTERBY: Matt, pull back just a little


2 bit, please.
3 Q. (By Mr. Easterby) So, Mr. Giron, you see the
4 foreground, the flooring?
5 A. Yes.
6 Q. What -- what used to be there?
7 A. Just the hallway. I mean, we had a nice
8 carpet.
9 MR. EASTERBY: Zoom in a little bit, Matt,
10 just right here.
11 Q. (By Mr. Easterby) Try not to lead, but just
12 this foreground area right here where there's a
13 flooring surface, what kind of flooring was that,
14 Mr. Giron?
15 A. It was oak. And, actually, that's the type
16 of floor -- wood flooring that, you know, you nail
17 down. So it was very expensive. That's what I got
18 from -- when I bought the house.
19 Q. Hardwood floors?
20 A. Hardwood floors, right.
21 Q. Did those all have to get ripped out?
22 A. Everything.
23 Q. Okay. Go to the next page, please.
24 And this is where -- where are we now? We're
25 looking at -- it looks like a fountain?

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1 A. That's the courtyard of the main entrance.


2 So we have a fountain there.
3 Q. Do you see this line up here that I'm
4 indicating with my pointer?
5 A. Yes.
6 Q. Did you ever go outside and try to get any
7 high-water marks outside your home after the
8 submerging?
9 A. Yeah. We kind of noticed some like that one
10 and then the doors outside.
11 Q. Okay.
12 A. Of course.
13 Q. Did y'all have a pool in your backyard?
14 A. Yes.
15 Q. When you left, was it blue?
16 A. It was.
17 Q. When you came back, what color was it?
18 A. It was like a swamp.
19 Q. All right. Let's go to the next page,
20 please.
21 This flooring here is what?
22 A. That's the carpet of the master's bedroom.
23 Q. And this red item in the top right is what?
24 A. That's a love seat that my wife used to sit
25 on and kind of spend some time, relax a little bit.

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1 Q. I tell you what. Let's just cut to the


2 chase.
3 How much of your downstairs furniture were
4 y'all able to salvage after Harvey?
5 A. Nothing.
6 Q. Go to the next page, please.
7 What are we looking at, Mr. Giron?
8 A. That's our dining area for breakfast. And
9 that's the butler's pantry. We did some -- my wife did
10 some remodeling, you know, like the backsplash, and the
11 granite -- the black granite with gold inside the
12 granite. That's what it is.
13 Q. And --
14 A. You see the door to -- the entrance to the
15 music room.
16 Q. Right. And since Harvey, are those cabinets
17 still in place?
18 A. Yes. We haven't been able to do all the --
19 the work required. But, I mean, they need to come out.
20 Q. Okay. Go to the next page, please.
21 Is that your wife, Anne?
22 A. Yes.
23 Q. Do you know why she's wearing a mask?
24 A. Well, because of all the, you know, filth
25 and -- she's -- I mean, we all wear masks when we're

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1 trying to rip off all -- everything that was in the


2 house.
3 Q. So the prior page, we saw the cabinets. Do
4 you know what's behind the cabinets?
5 A. Sheetrock.
6 Q. Do you think it got wet?
7 A. Of course.
8 Q. Do you have concerns about mold?
9 A. Yes.
10 MS. SANTACRUZ: Objection, Your Honor.
11 Leading.
12 THE COURT: It's a leading question, but the
13 Court will allow it.
14 Q (By Mr. Easterby) Okay.
15 Go to two pages ahead, please, Matt.
16 Where are we looking at here?
17 A. That is the closet to the master's bedroom.
18 Q. Upstairs or downstairs?
19 A. Downstairs.
20 Q. When you left for Austin, did it look like
21 that?
22 A. No.
23 Q. Were there things hanging from the rods?
24 A. Yeah. All the clothing needed to be thrown
25 away. So we had her side, my side. We had some stuff

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1 there. She had furs. Everything had to be thrown out.


2 Q. She had what?
3 A. She had fur coats.
4 Q. Everything in that master downstairs closet
5 had to be thrown out?
6 A. Yeah.
7 Q. Okay.
8 Go to the last page, please.
9 How long have you been living in that
10 trailer, Mr. Giron?
11 A. I believe it was the middle of January of
12 2019 when I got it from -- from FEMA.
13 Q. And I think you said earlier that that
14 trailer is about to go?
15 A. Yes.
16 Q. And you're going to live where?
17 A. Well, at this point, I really don't know. I
18 mean, probably the house, but I'm hesitant to do that.
19 So I'm trying to talk to FEMA, see if I can make some
20 arrangements. Nobody told me from FEMA that I could
21 have got the rent for $50 instead of 1,000. I was
22 never notified that. And now, you know, they want me
23 to pay rent. And so I can't -- I can't afford it.
24 Q. Well -- and this may sound like a dumb
25 question, but, Mr. Giron, has the submergement of your

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1 house by the Barker pool interfered with your use of it


2 as your home?
3 A. Yes. Absolutely.
4 Q. Did the government ever ask you permission to
5 store water in your house?
6 A. No.
7 Q. Has anybody ever told you that, during
8 Harvey, that bayou that's behind your house came up out
9 of its banks?
10 A. No.
11 Q. During Tax Day, did you ever see it come out
12 of its banks?
13 A. No.
14 Q. Last question, Mr. Giron: How has this
15 experience impacted you and your family?
16 A. Well, we're not the same. The house is gone.
17 All the memories -- I'm sorry. I'm just getting
18 emotional. Thank you.
19 But, I mean, the house is gone. Our marriage
20 is not where it needs to be. We separated because of
21 all these things going on. My income dropped
22 dramatically. So it's not the same.
23 Q. Thank you for your time, Mr. Giron.
24 MR. EASTERBY: I will pass the witness.
25 THE COURT: Thank you, Mr. Easterby.

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1 Mr. Giron and Ms. Santacruz, this is about


2 the time we would ordinarily take an afternoon break
3 for 15 minutes. May the Court do that?
4 THE WITNESS: Sure.
5 THE COURT: Thank you.
6 We're in recess for 15 minutes.
7 THE CLERK: All rise. Court is adjourned.
8 (Whereupon a short recess was taken.)
9 THE CLERK: All rise. The United States
10 Court of Federal Claims is now in session, the
11 Honorable Charles F. Lettow presiding.
12 THE COURT: Please be seated.
13 Mr. Giron, welcome back.
14 Ms. Santacruz, you may proceed.
15 THE WITNESS: Thank you.
16 CROSS-EXAMINATION
17 BY MS. SANTACRUZ:
18 Q. Good afternoon, Mr. Giron. How are you
19 doing?
20 A. (Inaudible.)
21 MS. SANTACRUZ: Your Honor, before I begin, I
22 would like to note for the record that the -- that the
23 parties' stipulations in document ECF211 includes a
24 number of stipulations regarding Mr. Giron's property.
25 And they are on page 4, paragraphs 19 to 23.

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1 Q (By Ms. Santacruz) Mr. Giron, I want to ask


2 you a follow-up question -- a few follow-up questions
3 on the location of your property.
4 I know that plaintiffs' counsel showed you a
5 few aerial maps on the location of your property, and I
6 would like to direct your attention to another similar
7 map. We're going to show you Defendants' Exhibit 830.
8 Mr. Giron, do you see your property on this
9 map?
10 A. Yes.
11 Q. Does this aerial map accurately represent the
12 location of your property -- your property on Cassidy
13 Park Lane?
14 A. Yes.
15 MS. SANTACRUZ: Your Honor, at this time, we
16 move to admit this exhibit into evidence.
17 MR. EASTERBY: Your Honor, same as the last
18 one. I don't have an issue with this except for the
19 callout box with the little blue squiggly lines in the
20 top right. But, other than that, no objection.
21 THE COURT: Ms. Santacruz.
22 MS. SANTACRUZ: That's fine, Your Honor.
23 THE COURT: All right. It's admitted. The
24 Court will ignore the callout box.
25 (Whereupon, Defendants' Exhibit 830 was

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1 admitted into evidence.)


2 Q (By Ms. Santacruz) Mr. Giron, when you
3 bought the property in 2005, you received a number of
4 closing documents; right? And you reviewed a few of
5 them with your counsel?
6 A. Yes.
7 Q. Okay. And those closing documents, including
8 at least two of the ones that were displayed today, are
9 in your -- they included a description of your
10 property; is that correct?
11 A. Yes.
12 Q. Okay. I'm going to show you a few other
13 documents. I'm going to start with Joint Exhibit 708.
14 THE COURT: What was the number again,
15 Ms. Santacruz?
16 MS. SANTACRUZ: It's Joint Exhibit 78.
17 MR. EASTERBY: I believe you mean 78,
18 Counsel?
19 MS. SANTACRUZ: That's what I said, 78.
20 Q (By Ms. Santacruz) Mr. Giron, you are
21 familiar with this document; correct?
22 A. Yes.
23 Q. This is a closing settlement and the title
24 insurance for when you purchased your home in 2005?
25 A. Yes.

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1 MS. SANTACRUZ: Your Honor, at this point, we


2 would like to admit this exhibit into evidence.
3 MR. EASTERBY: No objection, Your Honor.
4 THE COURT: Admitted.
5 (Whereupon, Joint Exhibit 78 was
6 admitted into evidence.)
7 Q (By Ms. Santacruz) Mr. Giron, can you please
8 turn -- turn to the fifth-page. It is entitled
9 "Schedule A."
10 A. Okay.
11 Q. This -- this document -- this page contains a
12 legal description of your property; right? Do you see
13 that?
14 Item No. 3.
15 A. Oh. Yes.
16 Q. And this legal description references a plat
17 map; is that correct?
18 A. Can you repeat that, please.
19 Q. And this legal description, it references a
20 plat map; is that correct?
21 A. I'm assuming.
22 Q. Yes. Can you please read that into the
23 record in Item No. 3?
24 A. "Legal description of the land: Lot 16,
25 Block 3 of Cinco Willow Fork, Section 1, an addition in

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1 Fort Bend County, Texas, according to the map or plat


2 thereof, recorded in Slide No. 1997/B and 1998/A of the
3 plat records of Fort Bend County, Texas."
4 Q. Thank you, Mr. Giron.
5 Now I'm going to turn your attention to Joint
6 Exhibit 79. And it should be in the same binder.
7 A. What number?
8 Q. 79.
9 A. 79?
10 Q. Yes.
11 A. Oh, okay.
12 Okay.
13 Q. And you're familiar with this document as
14 well; right?
15 A. Am I what?
16 Q. Familiar with this document.
17 A. I'm sorry. I'm not hearing you.
18 Q. Sorry.
19 Are you familiar with this document?
20 A. Well, it's part of the warranty deed.
21 Q. And that is the deed for your property; is
22 that correct?
23 A. Yes.
24 Q. Thank you.
25 MS. SANTACRUZ: Your Honor, at this moment,

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1 we would like to move -- to admit this exhibit into


2 evidence.
3 MR. EASTERBY: No objection, Your Honor.
4 THE COURT: Admitted.
5 (Whereupon, Joint Exhibit 79 was
6 admitted into evidence.)
7 Q (By Ms. Santacruz) And, Mr. Giron, can you
8 see that this document also includes a description of
9 your property towards the middle of the page?
10 A. Okay. Yes.
11 Q. And this document, the description also
12 references the plat map that you described in the
13 earlier document; is that correct?
14 A. Correct.
15 Q. Okay. We can put that aside for now.
16 So you described earlier that you were not at
17 your home during Harvey; is that correct?
18 A. That is correct.
19 Q. Okay. So -- and when you returned, you
20 returned on the day of your birthday on September 3rd?
21 A. Yes.
22 Q. Okay. And when you returned, you said that
23 you saw water marks on your -- inside your property?
24 A. Yes.
25 Q. And also outside of your property?

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1 A. Yes.
2 Q. And I believe that, when we went to the -- to
3 your house during the site visit last week, there was a
4 fence outside. And it had a water -- a water mark. Do
5 you recall that?
6 A. Yes.
7 Q. And was that water mark there prior to
8 Harvey?
9 A. No.
10 Q. Okay. Thank you.
11 And you talked about approximating the inches
12 of the water. Did you take the measurements of that
13 high-water mark as well?
14 A. I did not; my wife did.
15 Q. A few months after Harvey, you asked a mold
16 inspector to come and check out your home for mold; is
17 that correct?
18 A. That is correct.
19 Q. And you received a written report about that
20 inspection.
21 A. Yes.
22 Q. And the inspector concluded that there's some
23 mold in your house but not to a point where there could
24 be damage; is that correct?
25 A. That's what they said.

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1 Q. Okay. We also talked about earlier -- you


2 talked about earlier about FEMA and the trailer that
3 FEMA provided for you to live in?
4 A. Yes.
5 Q. And in addition to the FEMA trailer, FEMA
6 also provided some financial assistance; is that
7 correct?
8 A. Yes.
9 Q. Okay. And approximately about 25,000. Would
10 that be an approximation?
11 A. I would say so.
12 Q. Okay. And you don't have to pay that amount
13 back, do you?
14 A. No.
15 Q. Earlier during your testimony, you talked
16 about the bayou, the bayou that backs up to your
17 property. Do you recall that testimony?
18 A. Yes.
19 Q. Okay. And when you bought that property in
20 2005, you knew that the bayou was there?
21 A. Yes.
22 Q. Okay. And if I remember correctly from
23 earlier in your testimony that you have access to
24 that -- to the bayou through a gate that you have in
25 your backyard; is that correct?

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1 A. Yes.
2 Q. Okay. I'm going to turn your attention to
3 Joint Exhibit 248.
4 Mr. Giron, this is an aerial image of your
5 home; is that correct?
6 A. Yes.
7 Q. And you -- do you recall discussing this --
8 this exhibit during your deposition?
9 A. Yes.
10 Q. And you made those markings during your
11 deposition; right?
12 A. Yes, I did.
13 MS. SANTACRUZ: Your Honor, at this moment,
14 we move to admit this exhibit into evidence.
15 MR. EASTERBY: No objection, Your Honor.
16 THE COURT: Admitted.
17 (Whereupon, Joint Exhibit 248 was
18 admitted into evidence.)
19 Q (By Ms. Santacruz) Okay. Let's talk about
20 some of those few marks there. The one where it's
21 labeled "C," do you see that?
22 A. Yes.
23 Q. And you identified this as the gate -- the
24 back gate that allows you access to the bayou; right?
25 A. Right.

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1 Q. And then you also drew a pathway from that


2 gate that leads you to the bayou that gives -- that
3 grants you access to the bayou; is that right?
4 A. Right.
5 Q. Okay. You also mentioned that you and your
6 wife -- you testified earlier that you and your wife
7 take -- used to take walks along that -- that road
8 along the bayou?
9 A. Yes.
10 Q. And that road is also identified in this
11 exhibit; right?
12 A. Yes.
13 Q. Okay. And if you look at the top of this
14 page, there is a label "A." Do you see that at the
15 top?
16 A. Yes.
17 Q. Okay. And you wrote "Memorial Day flood."
18 Do you recall that?
19 A. Yes.
20 Q. Okay. And the driveway of the house is shown
21 on this portion of the image; is that correct?
22 A. Yes.
23 Q. Okay. And then you drew a red line drawn --
24 you drew -- and you drew that red line across your
25 driveway; right?

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1 A. Right.
2 Q. Okay. And if -- if I remember correctly, you
3 drew this line to indicate the area that was covered by
4 water during the Memorial Day flood; right?
5 A. Correct.
6 Q. Okay. And, in addition to your driveway, the
7 street in front of your house also flooded during
8 Memorial Day flooding; correct?
9 A. The street, yes.
10 Q. Okay. And then, if I remember correctly, you
11 also said that the street flooded during Hurricane Ike.
12 A. I don't remember saying that.
13 Q. Well, you said that it was partially -- well,
14 that the street flooded during -- during Memorial Day
15 flood and during Hurricane Ike.
16 MR. EASTERBY: Your Honor --
17 THE WITNESS: I might have said it, but I
18 don't remember.
19 THE COURT: Just a moment.
20 Mr. Easterby?
21 MR. EASTERBY: Objection. Improper
22 foundation for impeachment.
23 THE COURT: Sustained.
24 Q (By Ms. Santacruz) Earlier in your testimony
25 you said that you were aware that Houston was

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1 susceptible to hurricanes.
2 THE COURT: Ms. Santacruz, during whose
3 testimony when?
4 MS. SANTACRUZ: Earlier -- I'm sorry, Your
5 Honor. Thank you for clarifying.
6 Q (By Ms. Santacruz) Earlier, during your
7 direct examination with plaintiff -- with your counsel,
8 you said that -- you testified that you knew that
9 Houston was susceptible to hurricanes.
10 A. Yes.
11 Q. You even described it as being "a hurricane
12 bomb." Do you recall that testimony?
13 A. Yes.
14 Q. Okay. You also were aware that Houston had a
15 history of flooding.
16 A. I was not aware of it till I got to Houston.
17 Q. Right. And that was in August of 2005?
18 A. Uh-huh.
19 Q. Okay. And you were here -- if I remember
20 correctly your testimony, that you were here during
21 Hurricane Rita that same year?
22 A. In 2005, yes.
23 Q. Okay. And you mentioned also that the risk
24 of flooding was a factor when you purchased your
25 property.

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1 A. Yes.
2 MS. SANTACRUZ: No further questions, Your
3 Honor.
4 THE COURT: Thank you, Ms. Santacruz.
5 Mr. Easterby.
6 MR. EASTERBY: Very briefly, Your Honor.
7 REDIRECT EXAMINATION
8 BY MR. EASTERBY:
9 Q. Mr. Giron, the mold inspection was back in
10 August of last year; is that right?
11 A. I don't recall exactly the date, but yeah.
12 Q. Have you had it reinspected since then?
13 A. No.
14 Q. Have you been running your air-conditioning
15 for the last nine months, three days?
16 A. Yes.
17 Q. Really? Okay.
18 All right. Mr. Giron, thank you for your
19 time today. I appreciate it.
20 A. Okay.
21 THE COURT: May the Court excuse Mr. Giron as
22 a witness?
23 MR. EASTERBY: Yes, sir, Your Honor.
24 THE COURT: Ms. Santacruz?
25 MS. SANTACRUZ: Yes, Your Honor.

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1 THE COURT: Thank you.


2 Mr. Giron, thank you for patience, and thank
3 you indeed for your testimony this afternoon.
4 THE WITNESS: Thank you.
5 THE COURT: Thank you.
6 Mr. Vujasinovic?
7 MR. VUJASINOVIC: Yes, Your Honor. We call
8 Todd Banker.
9 THE COURT: Mr. Banker, would you approach
10 the bench to be sworn in as a witness.
11 THE WITNESS: Yes, sir.
12 Thereupon--
13 TODD ALAN BANKER,
14 was called as a witness, and having been first duly
15 sworn, was examined and testified as follows:
16 THE WITNESS: I do.
17 THE COURT: Please be seated in the witness
18 stand.
19 THE WITNESS: Thank you, sir.
20 THE COURT: And state your full name for the
21 record.
22 THE WITNESS: Todd Alan Banker.
23 THE COURT: Mr. Vujasinovic --
24 MR. VUJASINOVIC: Thanks, Your Honor.
25 THE COURT: -- you may proceed.

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1 DIRECT EXAMINATION
2 BY MR. VUJASINOVIC:
3 Q. Mr. Banker, now, it's your understanding
4 you're one of the test cases chosen by the government?
5 A. Yes, sir.
6 Q. And you were one of the folks we left off on
7 the site visit, just to reorient, so the judge didn't
8 get to come to your house? You're at the south end of
9 Barker; right?
10 A. Correct. Yes.
11 Q. And, now, what do you do for a living?
12 A. I'm in sales with a company that sells
13 semiconductors and computer products.
14 Q. And do you hold any degrees?
15 A. I hold a BFA in theater.
16 Q. What is a BFA?
17 A. A bachelor of fine arts from Southern
18 Methodist University.
19 Q. And where do you live?
20 A. We live at 4614 Kelliwood Manor Lane. And
21 that's in Katy. ZIP is 77450.
22 Q. And is that in Fort Bend County?
23 A. Yes, sir.
24 Q. Is that where you were living with your
25 family at the time of Harvey?

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1 A. Yes, sir.
2 Q. Let me put up as a demonstrative, this is a
3 map. It's from a report of a Dr. Bedient, Figure 2B.
4 And you recognize -- do you recognize that as
5 Barker Reservoir?
6 A. Yes, sir.
7 THE COURT: Mr. Vujasinovic, this
8 demonstrative, what is the point of --
9 MR. VUJASINOVIC: I'm sorry, Your Honor?
10 THE COURT: How did you identify this?
11 MR. VUJASINOVIC: Let me identify it as PDX6.
12 THE COURT: Thank you.
13 MR. VUJASINOVIC: You're welcome.
14 Q. (By Mr. Vujasinovic) And do you see where it
15 has your name associated with one of the dots there?
16 A. Yes, sir.
17 Q. Okay. And so is your home literally the
18 first home after the reservoir, that wooded area behind
19 your house?
20 A. Yes. We backed up into the woods.
21 Q. Okay. And tell us about -- you're married
22 and you have a child?
23 A. Married, have a child who is ten now, eight
24 at the time of Harvey.
25 Q. Okay. And your wife's name, please.

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1 A. Christina.
2 Q. Is she in here in the courthouse?
3 A. She is.
4 Q. How long have you lived in the Houston area?
5 A. Houston area, we moved here when I was six.
6 And was out of the country for two years, and we lived
7 in California for seven or six. So, besides that, I
8 have been in the Houston area. My parents are in the
9 same house.
10 Q. And this home, was it your primary residence?
11 A. This home was, yes.
12 Q. Okay. And about when did you buy it?
13 A. We bought it in 2007. We bought it in -- we
14 bought it in 2007; it was completed in July. So we
15 bought it January of 2007; it was completed in July.
16 Q. Banker 5, it says, "Deed of Trust."
17 Do you recognize that document on the screen?
18 A. Yes, sir.
19 Q. And is that -- y'all went through this in
20 your deposition; is that correct?
21 A. I believe so.
22 Q. And is that a correct copy of the deed of
23 trust through which you bought the test property that's
24 subject of this case?
25 A. I believe so.

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1 MR. VUJASINOVIC: We move to admit Banker 5.


2 MS. SANTACRUZ: No objection, Your Honor, but
3 I would note for the record that this is a joint
4 exhibit. It's Joint Exhibit No. 104.
5 THE COURT: Thank you. Joint Exhibit 104 is
6 admitted.
7 MS. SANTACRUZ: Oh, I'm sorry. I misspoke.
8 This is Joint Exhibit 82.
9 THE COURT: Correction. Joint Exhibit 82 is
10 admitted.
11 (Whereupon, Joint Exhibit 82 was
12 admitted into evidence.)
13 MR. VUJASINOVIC: Thank you, Judge.
14 Q. (By Mr. Vujasinovic) Will you please
15 describe that home.
16 A. Yes, sir. It's a two-story home,
17 single-family home. It's four bedrooms, three and a
18 half baths, has a decent-sized backyard, master in the
19 front -- first floor.
20 Q. What's that?
21 A. Master on the first floor.
22 Q. About how many square feet?
23 A. About 3700 square feet.
24 Q. What's the name of the subdivision?
25 A. Kelliwood Park.

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1 Q. Is that deed-restricted?
2 A. Yes, sir.
3 Q. Now, I'm going to put on the screen what's
4 been marked as Plaintiffs' Exhibit 2036-14.
5 And do you recognize what that's showing?
6 A. Yes, sir.
7 Q. And do you see where your house is there?
8 A. Yes, sir.
9 Q. And is -- where it says "Banker," is that the
10 location of your home?
11 A. Yes, sir.
12 MR. VUJASINOVIC: All right. We offer this
13 exhibit.
14 MS. SANTACRUZ: No objection, Your Honor.
15 THE COURT: Admitted.
16 (Whereupon, Plaintiffs' Exhibit 2036-14
17 was admitted into evidence.)
18 Q. (By Mr. Vujasinovic) I'm showing now
19 Plaintiffs' Exhibit 2036-15.
20 You recognize what's in that?
21 A. Yes, sir.
22 Q. We see your house?
23 A. Yes, sir.
24 MR. VUJASINOVIC: Okay. We move to admit
25 this exhibit.

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1 MS. SANTACRUZ: No objection, Your Honor.


2 THE COURT: It's admitted.
3 (Whereupon, Plaintiffs' Exhibit 2036-15
4 was admitted into evidence.)
5 Q. (By Mr. Vujasinovic) Why did you decide to
6 buy in the particular Kelliwood Park neighborhood?
7 A. I was being transferred back to Houston from
8 California at the time, and my wife and I had been
9 looking around the Memorial Drive energy corridor and
10 weren't able to find a place we liked.
11 My best friend had just bought a lot in this
12 particular neighborhood. It had just been opened up.
13 There were previous -- it was planned years before, but
14 it had just opened up for development. And he said go
15 look at their lot. And we went back to the
16 neighborhood. And there are established neighborhoods
17 in there, but there was nothing behind and nobody was
18 going to be back there. And we liked the seclusion of
19 the neighborhood. It was in Katy, so it had very good
20 schools. And we liked the layouts of the houses that
21 they were offering.
22 And so we decided, with my best friend's
23 permission, to purchase the home there.
24 Q. And what was it about this particular house
25 that made y'all want to buy it?

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1 A. Well, we chose a lot, but at the time we were


2 only the tenth home -- tenth purchaser of a home in
3 that particular unit, which has 99 houses they were
4 opening up.
5 And so we chose a lot because it had some
6 nice trees behind, it backed up, nobody would be behind
7 us. So it was going to be relatively secluded. The
8 floor plan was to my wife's taste, and it seemed like a
9 good size fit for us.
10 Q. About what did you pay for it?
11 A. About 440.
12 Q. And what were your expectations in terms of
13 this purchase as an investment for your family?
14 A. Well, it was in 2007. So real estate was
15 relatively good back then. So we -- we had planned
16 to -- basically, that would be our last home. So that
17 was kind of our -- our retirement home at the time.
18 And the way that Katy was growing, we expected some
19 real appreciation as far as the investment part of it.
20 Q. Before Harvey, did this home ever flood?
21 A. No. There was a home on the property. I was
22 not aware of any flooding of the area in that area.
23 Q. So you lived in this home from when you
24 bought it in '07 through Harvey?
25 A. Yes, sir.

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1 Q. Okay. During those years, before Harvey, did


2 it ever flood?
3 A. No.
4 Q. During that time period did you ever see
5 stormwater go above the curb at the front of your
6 house?
7 A. At the curb. In the Tax Day Flood, it hit --
8 it hit the grass line. It was these small curbs, so it
9 was easy to do. But that was the only time that ever
10 came close.
11 Q. Okay. Did you have flood insurance on this
12 home at the time of Harvey?
13 A. No, sir.
14 Q. Did you previously have flood insurance?
15 A. We did.
16 Q. Will you tell us about that.
17 A. Well, we first purchased the home when I was
18 on with our insurance company to purchase our -- all of
19 our insurances for the house. At that time she'd ask
20 if we wanted flood insurance, and I wasn't going to get
21 it. And then I had this -- this memory of one of my
22 buddies back in California whose teenage daughters
23 flooded their house because of improper clothes
24 washing.
25 And so she told me how much it was. I said,

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1 "Well, that's -- that seems pretty reasonable. Just go


2 ahead and throw it on there." So we went ahead and
3 bought flood insurance when we first purchased the
4 insurance for the house.
5 Q. Okay. And so at some point, but before
6 Harvey, did you stop having flood insurance?
7 A. We had the flood insurance about nine years,
8 and then kind of became -- we bought it -- we bought a
9 vacation home. And at the time we needed that kind of
10 extra money. And we had been through a few hurricanes
11 and some storms and hadn't seen any issues with it. So
12 we went ahead and dropped the flood insurance to help
13 pay for the other home.
14 Q. Before Harvey, did you have any idea your
15 home was located within a government reservoir?
16 MS. SANTACRUZ: Objection, Your Honor.
17 Leading.
18 THE COURT: It is leading, but it's an
19 allowable question.
20 THE WITNESS: No, sir.
21 Q. (By Mr. Vujasinovic) Did the government ever
22 approach you, ask for permission to use your land to
23 store floodwater on it?
24 A. No, sir.
25 Q. Before -- you've been present at a lot of

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1 this trial; right?


2 A. Yes, sir.
3 Q. And you've seen some plats talked about; is
4 that right?
5 A. Yes, sir.
6 Q. And the -- you have seen some inundation
7 language in those plats?
8 A. Yes, sir.
9 Q. Did you ever read any plats on your home
10 before Harvey?
11 A. I don't recall so, no.
12 Q. And did you ever read anything that said
13 anything about your home being subject to controlled
14 inundation any time before Harvey?
15 A. No, sir.
16 Q. I'm going to show you what's Exhibit
17 Barker 18, and it's got Bates No. 411, bottom
18 right-hand corner.
19 And ask you if you recognize what's in that
20 photo.
21 A. Yes, sir.
22 Q. Tell us.
23 A. This is a view from my driveway looking
24 towards -- we have one entrance to our -- to our
25 neighborhood. It's kind of looking towards this

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1 entrance. That they -- was -- I think after the


2 first -- first rain Friday night. I think that was
3 Saturday, maybe Saturday morning. I can't tell the
4 date.
5 Q. And that's -- is that your street?
6 A. That's the street that runs in front of my
7 house, yes.
8 MR. VUJASINOVIC: We offer Barker 18 with
9 Bates No. 411 at this time. Banker. Sorry Banker 18?
10 MS. SANTACRUZ: We don't have an objection as
11 to this photo, Your Honor.
12 THE COURT: Admitted.
13 (Whereupon, Banker Exhibit 18 was
14 admitted into evidence.)
15 Q. (By Mr. Vujasinovic) You recognize what I've
16 put up, Banker 18 with Bates No. 414?
17 A. Yes, sir.
18 Q. Tell the Court what this is.
19 A. This is right in front of my house. My
20 brother-in-law and I taking a kayak into the street,
21 and we were going to kayak to the front of the
22 neighborhood, see how the front of the neighborhood was
23 doing.
24 THE COURT: Mr. Vujasinovic, what's the
25 number of this photo?

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1 MR. VUJASINOVIC: It's Banker 18 with


2 Bates 414.
3 THE COURT: I thought we just addressed
4 Banker 18.
5 MR. VUJASINOVIC: It is, but in the
6 deposition there's a lots of Banker 18 photos, and
7 we've just culled out a handful for trial.
8 THE COURT: How many are there?
9 MR. VUJASINOVIC: That's it for 18 right now.
10 And I did the same with Banker 24, and I only have six
11 photos in that -- in that one.
12 MS. SANTACRUZ: Your Honor, we won't -- we
13 wouldn't object to those specific photos that are being
14 discussed here in court, but it is our understanding
15 that there is a lot more photos under that exhibit.
16 THE COURT: All right. We have Banker 18.
17 I'm going to have Banker 18A and 18B, just because we
18 have two separate photographs.
19 MR. VUJASINOVIC: Yes, Your Honor. Would you
20 like me to use A, B, C for the Banker 24 series?
21 THE COURT: If you would, please.
22 MR. VUJASINOVIC: Thank you.
23 Q. (By Mr. Vujasinovic) So did y'all have to
24 evacuate?
25 A. We did evacuate, yes.

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1 Q. Will you tell us about that.


2 A. Sunday, my wife had been watching Mr. Lindner
3 all day long, keeping updated, and she told me to start
4 moving stuff upstairs. So everything I could lift by
5 myself -- carpets, rugs, small furniture -- I moved
6 upstairs.
7 By Sunday night, she had been communicating
8 with one of her friends that lives a little farther
9 west, and I believe that's when they started announcing
10 the -- they were going to be letting water out at some
11 point. And she was very convinced we were going to get
12 water in the house. And so I moved the rest of the
13 stuff I could upstairs, out of the cabinets, dishes,
14 everything, clothes out of the closet.
15 And so Sunday night she made a plan with her
16 friend and kind of worked through the night, got a
17 little nap. And then about 7:00 in the morning, we
18 started gathering up some things. My wife gathered up
19 a couple of days' clothing for her and my daughter, and
20 I got some stuff, put in a trash bag, and we had this
21 kayak we bought previous -- couple months previously.
22 And by then, the water had reached just past
23 our tree line. So it was about 6 feet between the
24 waterline and the house.
25 And I put the garbage -- put the garbage bag

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1 on the kayak. We had life vests. My daughter -- my


2 wife took my daughter and our dog, and there was enough
3 width there between the tree line and the houses that
4 she could walk to the front of our neighborhood.
5 I got on the kayak, and I pulled in kayaks.
6 It was deep enough. And I met them in the front of the
7 neighborhood -- front of our neighborhood. We only had
8 one entrance at that point. And that entrance had
9 flooded Friday night, the first storm. We weren't able
10 to get the cars out at that point.
11 So at that point, we could see it was about
12 3 ½, and then it will drop to about 5 feet deep. So
13 the front of our neighborhood, we put everybody on the
14 kayak and kayaked up to Fry Road, which is an entrance
15 into the little neighborhood we're in.
16 And at that point, we could see Fry Road.
17 Fry Road was flooded, but along the walls on the sides
18 there was another, say, 4 or 5 feet width that was
19 still kind of dry, didn't have any water in it.
20 I stayed in the kayak and took that down Fry,
21 my wife took my daughter and dog. They walked along
22 the edge, and it was probably half a mile or so where
23 my wife's friend was waiting with a large pickup truck.
24 And we got in her pickup truck and put the kayak in
25 there and went to their house. And that would have

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1 been right around Monday morning about 9:00.


2 Q. And how old is your daughter, by the way?
3 A. At Harvey time, she was eight. She's ten
4 now.
5 Q. And about how far did y'all do this little
6 mission where you kayaked and finally got to the truck?
7 How far --
8 A. We were probably -- what is it? -- 11 houses.
9 So it's about 200 yards to the front of neighborhood.
10 It's another 200 yards or 300 yards by kayak to the
11 front of Fry. And then that -- that trip might have
12 been a quarter, maybe a little more than a quarter to a
13 half a mile until the water was -- was low enough that
14 she could get her truck up. She got her truck as far
15 as she could onto Fry, as close to us as possible.
16 Q. How long later was it before you came back to
17 your house?
18 A. It would have been the previous Monday, on
19 Labor Day, when they were letting people back in the
20 neighborhood.
21 Q. Okay. And describe your home when you got
22 back to it at that time.
23 A. The water was around -- depending on where
24 you were in the neighborhood, was still around
25 sidewalk -- at sidewalk level. A lot of -- a lot of

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1 people already started cutting -- cutting up their


2 homes.
3 When I went to my home, it was covered in a
4 sludge. The water had retreated out of the house. The
5 water was kind of cover -- the house was covered in
6 kind of this sludge, muddy sludge. Carpet was filthy,
7 kind of smelled poorly.
8 Q. Okay. I'm going to show you Banker
9 Exhibit -- Banker 24. We'll call this A, which is --
10 got Bates No. 252 on it.
11 And do you recognize what's in this photo?
12 A. Yes, sir.
13 Q. Tell us what that is.
14 A. This is during the build-back in our -- in
15 our bathroom. That's one of the walls in the bathroom.
16 The sinks would have -- our sinks are there. And then
17 the man is working in the shower area because
18 everything had come down. And this is the build-back.
19 MR. VUJASINOVIC: We offer this as an
20 exhibit, Your Honor.
21 MS. SANTACRUZ: No objection, Your Honor.
22 THE COURT: Admitted.
23 (Whereupon, Banker Exhibit 24A was
24 admitted into evidence.)
25 Q. (By Mr. Vujasinovic) This is Banker 24B,

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1 with Bates No. 262.


2 Do you recognize what's in it?
3 A. Yes.
4 Q. Tell us, please.
5 A. Again, this is build-back time. This is the
6 butler pantry that's attached to the kitchen area and
7 the laundry room on the right. All the cabinets had to
8 be rebuilt.
9 MR. VUJASINOVIC: We offer this exhibit.
10 MS. SANTACRUZ: No objection, Your Honor.
11 THE COURT: Admitted.
12 (Whereupon, Banker Exhibit 24B was
13 admitted into evidence.)
14 Q. (By Mr. Vujasinovic) I'm showing you Banker
15 24C, with Bates No. 325.
16 Do you recognize this?
17 A. Yes, sir.
18 Q. What is it?
19 A. This is a view from our laundry room into our
20 dining room towards the front of the house. So this is
21 before they had sheetrocked it. So this was just after
22 it had been -- during mediation.
23 Q. How high of drywall did y'all have to remove
24 throughout your first floor?
25 A. We did 4 feet.

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1 MR. VUJASINOVIC: We offer this exhibit.


2 MS. SANTACRUZ: No objection, Your Honor.
3 THE COURT: Admitted.
4 (Whereupon, Banker Exhibit 24C was
5 admitted into evidence.)
6 Q. (By Mr. Vujasinovic) I'm showing you Banker
7 24D, as in dog. It's got Bates No. 329 on it.
8 What is this?
9 A. This is in our living room. This is our --
10 our hearth, fireplace area. It had to be demolished so
11 they could get to the wall behind it to remediate it
12 properly. So this is during the -- the
13 destruction/remediation process.
14 MR. VUJASINOVIC: We offer this exhibit.
15 MS. SANTACRUZ: No objection, Your Honor.
16 THE COURT: Admitted.
17 (Whereupon, Banker Exhibit 24D was
18 admitted into evidence.)
19 Q. (By Mr. Vujasinovic) I'm showing you
20 Banker 24E, which has got Bates No. 316 on it.
21 Do you recognize that?
22 A. Yes, sir.
23 Q. What is this?
24 A. This is a bunch of our stuff on the front
25 lawn that was thrown away during the remediation

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1 process.
2 MR. VUJASINOVIC: We offer this exhibit.
3 MS. SANTACRUZ: No objection.
4 THE COURT: Admitted.
5 (Whereupon, Banker Exhibit 24E was
6 admitted into evidence.)
7 Q. (By Mr. Vujasinovic) I'm showing you Exhibit
8 Banker 24D, as in -- I'm sorry -- F, as in Frank. And
9 it's got Bates No. 343.
10 You recognize that?
11 A. Yes, sir.
12 Q. Tell us what it is.
13 A. This is a picture I first took when I came
14 back to the house for the first time of our garage door
15 with the waterline. There's kind of two waterlines
16 where they -- where they left lawn stuff, apparently.
17 Q. Is this the kind of --
18 A. Yeah. The waterline is actually a couple of
19 inches above that. So it raised and then came down for
20 a little bit longer. Yes, it has two waterlines.
21 MR. VUJASINOVIC: We offer this exhibit.
22 MS. SANTACRUZ: No objection, Your Honor.
23 THE COURT: Admitted.
24 (Whereupon, Banker Exhibit 24F was
25 admitted into evidence.)

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1 Q. (By Mr. Vujasinovic) Where did you initially


2 live right after Harvey, you know, right after y'all
3 came back and saw your house in this condition?
4 A. When we came back, we lived in -- we lived in
5 a hotel for our first week. And then my parents lost
6 electricity from Harvey. Once their electricity came
7 back on, which would have been about ten days after the
8 event, we moved in with them.
9 Q. Okay. And then did y'all have your house
10 repaired?
11 A. I'm sorry?
12 Q. Did y'all have your house repaired?
13 A. We did. As soon as remediation was done,
14 then we had -- we had this contractor come in and start
15 repairing.
16 Q. How long were you out of your house,
17 approximately, before you moved back in?
18 A. Seven months.
19 Q. And did you live with your parents that whole
20 time?
21 A. Yes, sir.
22 Q. Okay. That's always ideal; right?
23 A. It drove my mom a little batty.
24 Q. Okay. Tell the Court about a few of the
25 belongings, whether it's appliances or furniture, that

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1 you weren't able to save by bringing it upstairs that


2 y'all lost.
3 A. Sort of all our appliances we lost. We tried
4 to keep, but none of them worked. So our refrigerator,
5 freezer, washer, dryer, that kind of stuff. All the
6 furniture that I could not carry up, which would have
7 been bed, kitchen table, a couch, and a love seat, the
8 love seat that I couldn't -- couldn't fit up there.
9 Most of the smaller furniture and rugs, I was able to
10 get up. Some cabinets that were in one of the -- our
11 office.
12 Q. Did all the flooring in your house have to be
13 replaced?
14 A. The middle section of our house is -- was
15 tile. We had two -- two rooms with wood flooring, and
16 those had to be replaced. And then the carpet and some
17 of the stair carpet also had to be replaced. And we
18 had carpet in the closets and the bedroom.
19 Q. I assume you tried your best to save family
20 photos and mementos?
21 A. Yes. I only found one little scrapbook that
22 was -- luckily, we had everything else upstairs.
23 Q. And what was lost in terms of mementos? What
24 did y'all lose?
25 A. Well, the -- the scrapbook was a time when my

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1 daughter was in the hospital after she was born. So it


2 covered this year-long time when she was in the
3 hospital when she was first born.
4 So that was kind of an important -- I didn't
5 know where it was. And it happened to be flooded out
6 when we got back. Everything else, I was able to move
7 upstairs, luckily.
8 Q. So it's kind of obvious, but were you able to
9 use your house as you normally would for that time
10 period after Harvey until you got back into the house?
11 A. No, sir.
12 Q. Can you state in your own words what you feel
13 was taken from you in this event?
14 A. Well, I mean, people say peace of mind, but
15 that -- that is truly also what was taken from us, and
16 the uncertainty of the future.
17 More importantly for us is my daughter's
18 future, who has special needs, and will never be able
19 to take care of herself. So -- and so my wife and I
20 had been planning for her care after we're gone for a
21 long time and estimated how much we would need when
22 we're gone. And figure this probably cost us 10 or 11
23 years of care for my daughter, at least, which, you
24 know, took me 18 or 19 years to accumulate. So it's
25 hard to get that back.

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1 But that's the most important aspect of what


2 we've lost. And so we kind of -- that's what we --
3 hard to deal with on a day-to-day basis, I know.
4 Q. If you'd known all you've learned through
5 this trial about how and why you got that water in your
6 house, would you have ever purchased that house in the
7 first place?
8 A. No, sir.
9 Q. Okay. Thank you.
10 MR. VUJASINOVIC: I'll pass the witness.
11 THE COURT: Thank you.
12 Ms. Santacruz, cross-examination?
13 CROSS-EXAMINATION
14 BY MS. SANTACRUZ:
15 Q. Good afternoon, Mr. Banker.
16 A. Hi.
17 MS. SANTACRUZ: Your Honor, before I begin
18 the examination, I would like to note for the record
19 that this property also is included as part of that
20 joint -- parties' joint stipulations in Document 211.
21 And they're on page 2, paragraphs 4 through 9.
22 Q (By Ms. Santacruz) Mr. Banker, I have a few
23 follow-up questions on the Location of your property.
24 And, earlier, during your direct examination, you
25 identified the location of your property in some of the

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1 aerial maps. So I'm going to show you also an aerial


2 map. Can you please turn to Defendants' Exhibit 826.
3 Does this exhibit -- do you see your property
4 in this exhibit?
5 A. Yes, ma'am.
6 Q. Okay. Does this area map accurately reflect
7 the location of your property on Kelliwood Park Lane?
8 A. Yes.
9 MS. SANTACRUZ: Your Honor, we move to admit
10 Exhibit DX826.
11 MR. VUJASINOVIC: No objection.
12 THE COURT: Admitted.
13 (Whereupon, Defendants' Exhibit 826 was
14 admitted into evidence.)
15 Q (By Ms. Santacruz) Now I would like to turn
16 your attention to another map displaying your property.
17 And this is going to be Joint Exhibit 254.
18 Do you remember this exhibit from your
19 deposition?
20 A. Yes, ma'am.
21 Q. Thank you.
22 Do you remember -- and this exhibit, just for
23 the record, is an aerial image of your property on
24 Kelliwood Park Lane?
25 A. Yes, ma'am.

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1 Q. And you remember making those handwritten


2 notes there?
3 A. Yes, ma'am.
4 Q. Okay.
5 MS. SANTACRUZ: Your Honor, at this moment,
6 we move to admit Defendants' -- oh, Joint Exhibit 254.
7 MR. VUJASINOVIC: No objection.
8 THE COURT: Admitted.
9 (Whereupon, Defendants' Exhibit 254 was
10 admitted into evidence.)
11 Q (By Ms. Santacruz) Okay. Do you remember
12 that you identified the location of your -- of your
13 home in this map?
14 A. I'm sorry?
15 Q. Do you remember marking -- identifying the
16 location of your home in this map?
17 A. Yes, ma'am.
18 Q. And you made the notation "my home"?
19 A. Yes.
20 Q. And that you also identified the park that
21 is -- that backs up to your home. Remember that?
22 A. Yes.
23 Q. Okay. And you labeled it as George Bush
24 Park?
25 A. Yes.

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1 Q. You also -- the blue markings that you also


2 identify, the drainage that are on the two sides of
3 your property.
4 A. Yes.
5 Q. Going back to the park and your label there,
6 I remember -- earlier, you testified that you knew that
7 the park was there?
8 A. Yes.
9 Q. And that that's one of the things that
10 attracted you to the property?
11 A. Yes.
12 Q. That you didn't have any neighbors on your
13 backyard?
14 A. Right.
15 Q. Now can we turn to Joint Exhibit 80, please.
16 Can you go to the next page, please, that was
17 with the map.
18 A. (Witness complies.)
19 Q. Do you remember that we spoke about this
20 document during your deposition?
21 A. Yes.
22 Q. Okay. And you had made some markings on this
23 document as well. Do you recall that?
24 A. Yes, ma'am.
25 Q. Okay. And you labeled -- using the red

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1 marker there, you labeled that lot, Lot No. 16. Do you
2 see that?
3 A. Yes.
4 Q. And you labeled it as "my home."
5 A. Yes.
6 Q. Okay. And you also identified the George
7 Bush Park that we had seen on the previous aerial map?
8 A. Yes.
9 Q. Right?
10 And you note -- and you can see that there's
11 actually --
12 Can you zoom out, Charles?
13 -- there are three different -- oh, I count
14 four now -- four different labels or markings
15 identifying that George Bush Park.
16 Do you see that?
17 A. Yes.
18 Q. And, right below that George Bush Park, there
19 is a note in parentheses. Do you see that?
20 A. Yes, ma'am.
21 Q. And under each of those labels, it says "park
22 or reservoir." Do you see that?
23 A. Yes.
24 Q. Okay. We're going to talk about now about
25 the closing documents that you received when you

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1 purchased the home in 2007.


2 When you purchased it, it was just -- as we
3 discussed earlier in your deposition and you testified
4 earlier, it was just a lot?
5 A. Correct.
6 Q. Okay. So it was part of a new development of
7 the Kelliwood Park development?
8 A. Yes, ma'am.
9 Q. We're going to turn to exhibit -- Joint
10 Exhibit 82, which has been previously admitted.
11 And I'm going to turn your attention --
12 redirect your attention to Exhibit 8 at the end. And
13 it's labeled "Depo/08" -- I can't see that far. Oh,
14 "8534."
15 And this exhibit contains the legal
16 description of your home; correct?
17 A. Yes, ma'am.
18 Q. Okay. Can you please read that into the
19 record.
20 A. "Lot 36 in Block 1 of Kelliwood Park, a
21 subdivision according to the map or plat thereof
22 recorded in Plat No. 20060157 of the plat records of
23 Fort Bend County, Texas."
24 Q. Thank you, Mr. Banker.
25 And we discussed during your deposition that

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1 you refinanced your home at least two times; right?


2 A. Yes, ma'am.
3 Q. And those refinance documents also contained
4 legal descriptions of your property?
5 A. Probably, yes, ma'am.
6 Q. And they contain exactly the same identical
7 language that you just read into the record; correct?
8 A. I would have to see that, but I believe --
9 Q. Yeah, sure. Can we pull Joint Exhibit 104,
10 please.
11 And let me know when you're ready.
12 A. Uh-huh.
13 Q. This is a deed of trust proving you
14 refinanced your home in 2010; correct?
15 A. Yes. Yes.
16 Q. And this document is dated September 7th,
17 2010?
18 A. It's the 27th, I see, yes, ma'am.
19 MS. SANTACRUZ: Your Honor, at this moment,
20 we move to admit Joint Exhibit 104.
21 MR. VUJASINOVIC: No objection.
22 THE COURT: Admitted.
23 (Whereupon, Joint Exhibit 104 was
24 admitted into evidence.)
25 Q (By Ms. Santacruz) Mr. Banker, can you

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1 please turn to page 3 of this document.


2 A. (Witness complies.)
3 Q. Do you see towards the middle of the page
4 where it says "Lot 36"?
5 A. Yes.
6 Q. Do you mind reading that into the record?
7 A. "Lot 36 in Block 1 of Kelliwood Park, a
8 subdivision in Fort Bend County, Texas, according to
9 the map or plat thereof recorded in Plat No. 20060157
10 of the plat records of Fort Bend County, Texas."
11 Q. Thank you, Mr. Banker.
12 Now we're going to turn to joint Exhibit 124.
13 And this is a deed of trust for when you
14 refinanced your home in 2016; correct?
15 A. Yes, ma'am.
16 Q. All right. And this document was recorded on
17 March 28th, 2016. Do you see that?
18 It's at the top of the page.
19 A. Sorry. Yes.
20 Q. Okay. Now let's turn to Exhibit A. And
21 that's the last page of this document.
22 This exhibit also contains a legal
23 description of your property; correct?
24 A. Yes.
25 Q. Okay. For -- in the interest of time, I'm

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1 not going to make you read that into the record


2 anymore, but -- all right.
3 So we can put that aside right now.
4 And you discussed earlier, when you were
5 talking about your -- during your examination, that you
6 grew up in the area?
7 A. Yes, ma'am.
8 Q. I remember during your deposition that we
9 tried to do the math. And we came up with about 30
10 years or more than 30 years?
11 A. Would have been -- yeah, how old am I?
12 So 33, 34 years, yeah.
13 Q. So you're very familiar with this area?
14 A. Yes.
15 Q. With the West Houston area?
16 A. With the West Houston area I grew up in.
17 Q. That's where you group up?
18 A. I grew up in West Houston, Eldridge and
19 Memorial.
20 Q. And, if I remember correctly, you said that
21 you grew up near the reservoir, the Barker Reservoir?
22 A. Yes.
23 Q. So you were familiar with that area prior to
24 the development of your subdivision?
25 A. With -- I would say on the -- what we called

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1 the downstream side is where I grew up.


2 Q. Yeah. If I remember correctly, you said that
3 that area, prior to being development -- developed, it
4 was just woods and pastureland?
5 A. My particular neighborhood?
6 Q. I'm sorry?
7 A. My particular neighborhood?
8 Q. The Kelliwood Park where the subdivision is.
9 A. Right. Yes. Yeah.
10 Q. So when you bought that house, you knew that
11 your -- your house -- your subdivision was located near
12 the Barker Reservoir?
13 A. Depending on your -- I knew we backed up to
14 the park. So I wasn't sure where the reservoir ended
15 and where the park started at the time. You know?
16 Q. But you were familiar with that area?
17 A. Relatively.
18 Q. You had heard about the Barker Reservoir when
19 you bought the house?
20 A. Yes.
21 Q. Okay. And if I remember correctly from your
22 deposition, you described it as the rain catcher?
23 A. Yes. That is how I described it, I believe,
24 yes.
25 Q. Okay. So you understood that the purpose for

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1 the dam and the reservoir was to hold the water?


2 A. Yes.
3 Q. Let's talk a little bit about Harvey. You
4 said that you were not -- or you evacuated at some
5 point; right?
6 A. We did.
7 Q. Okay. And then you came back on Labor Day,
8 September 4th?
9 A. The following -- whatever the date of this
10 following Monday, yeah. I get my dates mixed up, yeah.
11 Q. And by the time you left -- you came back,
12 the water had already receded?
13 A. Correct.
14 Q. And if I remember correctly, during your
15 deposition -- during the -- during the deposition, you
16 said that only the first floor had been affected -- had
17 been flooded?
18 A. Correct.
19 Q. Okay. And you were able to save a lot of
20 your -- your personal belongings -- your personal
21 property by moving it upstairs to the second floor?
22 A. A pretty good amount.
23 Q. So the second floor was not flooded?
24 A. The second floor was not flooded.
25 Q. You did mention during your direct

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1 examination that you had to replace the carpet


2 upstairs. Was that because it flooded during Harvey?
3 A. Did I say that?
4 Q. Yes.
5 A. The second floor?
6 Q. Or I may have misheard.
7 A. We had to replace the stairwell carpet that
8 leads up to the second floor.
9 Q. Okay. But it was not up the upstairs carpet?
10 A. No. No.
11 Q. Thanks for clarifying.
12 And then after Harvey, you and your wife,
13 Christina Banker, applied for FEMA aid; correct?
14 A. We did.
15 Q. And, if I remember correctly, you received
16 about 22 -- $23,000?
17 A. Just over 22, I believe, yes.
18 Q. And did you have to pay that money back?
19 A. No.
20 MS. SANTACRUZ: Your Honor, at this moment, I
21 don't have any more questions for Mr. Banker.
22 Thank you, Mr. Banker.
23 THE COURT: Mr. Vujasinovic?
24 MR. VUJASINOVIC: Nothing further, Your
25 Honor.

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1 THE COURT: May the Court excuse Mr. Banker?


2 MR. VUJASINOVIC: Yes, sir.
3 MS. SANTACRUZ: Yes, sir.
4 THE COURT: Mr. Banker, you have been patient
5 as well, and the Court appreciates your testimony.
6 Thank you very much.
7 THE WITNESS: Thank you, Your Honor.
8 MR. VINCENT: Your Honor, Larry Vincent for
9 plaintiffs.
10 THE COURT: Say again?
11 MR. VINCENT: Larry Vincent for the
12 plaintiffs. We would call Mr. Kulwant Sidhu.
13 THE COURT: How do you spell the last name?
14 MR. VINCENT: S-i-d-h-u. First name
15 K-u-l-w-a-n-t.
16 THE COURT: I'm going to -- how do you
17 pronounce your name?
18 THE WITNESS: Kulwant Sidhu.
19 THE COURT: Kulwant?
20 Thereupon--
21 KULWANT SIDHU,
22 was called as a witness, and having been first duly
23 sworn, was examined and testified as follows:
24 THE WITNESS: I do.
25 THE COURT: Please be seated in the witness

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1 stand, and state your full name for the record.


2 THE WITNESS: Kulwant Sidhu.
3 DIRECT EXAMINATION
4 BY MR. VINCENT:
5 Q. Good afternoon, Mr. Sidhu. Where do you
6 live?
7 A. I live in California.
8 Q. And what do you do?
9 A. I'm retired.
10 Q. What did you do before you retired?
11 A. I was an engineer.
12 Q. Do you hold any degrees?
13 A. Bachelor's degree in engineering.
14 Q. From where?
15 A. London University.
16 Q. Is it correct you own property in Harris
17 County?
18 A. Yes, sir, I do.
19 Q. What is that property?
20 A. 16111 Aspenglen Drive.
21 Q. And what property do you own at that address?
22 A. I own 29 condominiums.
23 Q. When did you purchase those condominium
24 units?
25 A. In 2005.

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1 MR. VINCENT: Matt, JX72.


2 Q (By Mr. Vincent) Mr. Sidhu, do you recognize
3 this document?
4 A. Yes. This is a warranty deed.
5 Q. Is that the deed for the property at issue in
6 this case?
7 A. Yes, it is.
8 Q. You understand that not all of the properties
9 covered by this deed are test properties in this case;
10 correct?
11 A. I can't see the whole ...
12 MR. VINCENT: Matt, blow up the second full
13 paragraph.
14 THE WITNESS: Yes, I do see it on there.
15 Yes, I see it.
16 Q (By Mr. Vincent) Of those units, which units
17 are test properties?
18 A. Unit No. 603 and 604.
19 Q. Mr. Sidhu, you're a little quiet. So if you
20 could pull that mic a little closer to you.
21 A. I'm sorry.
22 Q. Fabulous.
23 MR. VINCENT: Your Honor, we would move the
24 admission of JX72.
25 MR. DAIN: No objection.

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1 THE COURT: Thank you, Mr. Dain.


2 Admitted.
3 (Whereupon, Joint Exhibit 72 was
4 admitted into evidence.)
5 MR. VINCENT: Matt, DX819.
6 Q (By Mr. Vincent) Mr. Sidhu, this is an
7 exhibit by the defendants showing various locations of
8 test properties. Do you see yours on that map?
9 A. Yes, I do.
10 Q. Does it accurately show where your property
11 is located?
12 A. It looks accurate, yes.
13 MR. VINCENT: Matt, JX252.
14 Q (By Mr. Vincent) Mr. Sidhu, do you recognize
15 what is JX252?
16 A. It looks like to be an overhead view of the
17 properties.
18 Q. This was provided to you at your deposition
19 by the government. Do you recall that?
20 A. I believe at the deposition, yes.
21 Q. Can you tell the Court where on this complex
22 overhead shot -- overhead shot of the complex are
23 Units 603 and 604?
24 A. They're at the lower left-hand corner, where
25 there's a blue marking. Right there, yes.

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1 Q. Do you know why there's a blue marking there?


2 A. There's a tarp on the roof of Unit 604.
3 MR. VINCENT: Your Honor, we would offer
4 JX252.
5 MR. DAIN: No objection.
6 THE COURT: Admitted.
7 (Whereupon, Joint Exhibit 252 was
8 admitted into evidence.)
9 Q (By Mr. Vincent) Mr. Sidhu, why did you
10 purchase these units?
11 A. These are investment properties. They were
12 bought up land for our retirement.
13 Q. How did you expect to use them?
14 A. To rent them out for rental income.
15 Q. Were you able to do that prior to the Harvey
16 flood?
17 A. Yes, I was.
18 Q. When you bought the units, did you know that
19 certain parts of Harris County would flood?
20 A. I'm not sure I knew much about Houston before
21 I purchased.
22 Q. Why did you buy the units in Houston?
23 A. I was looking for properties that would
24 produce decent rate of return. And I was using a
25 website called LoopNet. It's a national website. I

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1 guess these properties showed up as one of the possible


2 properties to purchase.
3 Q. When you bought them -- at the time you
4 bought them, were you concerned that they might flood?
5 A. Oh, not at all.
6 Q. Why not?
7 A. I had a seller give us real estate
8 disclosures. There was nothing to indicate in there
9 that they would flood.
10 On three of the condominiums, we took out
11 loans. And the lender did appraisals. And there's
12 nothing in the appraisals to indicate that they would
13 flood. Lenders would typically require flood insurance
14 if there was any indication of such.
15 Q. You mentioned flood insurance. Do you know
16 if the property is in a FEMA flood zone?
17 A. Say that again, please.
18 Q. Do you know if the properties are in a FEMA
19 flood zone?
20 A. Not to my knowledge, no.
21 Q. Have you ever carried flood insurance on the
22 properties?
23 A. I have not.
24 Q. When did you first learn that the properties
25 were located within the Addicks Reservoir?

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1 A. It was probably four months after the


2 flooding occurred.
3 Q. How did you find that out?
4 A. I just -- I started really learning about
5 loss and upstream and downstream properties. And I
6 wasn't sure which category I belonged in. So it was
7 after meeting with some attorneys that I fully
8 understood what had happened.
9 Q. Before you purchased the property in 2005,
10 what did you know about the Addicks Dam or reservoir?
11 A. Nothing.
12 Q. If you had known that the property was
13 located in a government reservoir, would you have
14 bought it?
15 A. I don't believe so.
16 Q. Why not?
17 A. Who would want to live with this?
18 Q. Did the government ever ask your permission
19 to use your property to store floodwaters on?
20 A. No.
21 Q. Did you get any deal or a price reduction
22 from the seller because it was in a reservoir?
23 A. No, because -- because not supposed to be in
24 a flood zone.
25 Q. Where were you when Harvey hit Houston?

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1 A. I was in California.
2 Q. What did you do to educate yourself about
3 what was going on at your property?
4 A. I spoke with a couple of people who do
5 maintenance work for me. I spoke with some tenants.
6 And that's how I found out about the flooding.
7 Q. Did you exchange any emails or other
8 communication with them?
9 A. I exchanged some text messages with one of
10 the tenants and some WhatsApp messages with another
11 tenant.
12 Q. What did you learn?
13 A. One of my tenants in the downstairs units, he
14 had remained there until the very last minute. So it
15 was something in the early hours of August 27th that he
16 texted to me that the water had entered the unit.
17 Q. And at Sidhu 28, sir, do you recognize this
18 photograph?
19 A. Yes, sir.
20 Q. What is it?
21 A. This is a photograph taken by one of my
22 tenants who lived in the upstairs unit, and she had
23 decided to stay there.
24 Q. When did you receive it?
25 A. I believe September 1. That's what it says

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1 there.
2 Q. Did you have any discussion with your tenant
3 about it?
4 A. She was just giving me daily --
5 MR. DAIN: Objection. Hearsay. Objection.
6 Hearsay. So hearsay.
7 THE COURT: Technically, it's hearsay.
8 On the other hand, what did you learn from
9 it?
10 Q. (By Mr. Vincent) Mr. Sidhu, when you saw
11 this photograph, did you recognize what it was a
12 picture of?
13 A. It was a picture of a lot of water there.
14 Q. Are those the apartments -- or the
15 condominium units that you own?
16 A. Sorry?
17 Q. Are those units at the condominium complex
18 that you own? Do you recognize it?
19 A. I recognize some of the units, yes.
20 MR. VINCENT: Your Honor, we move the
21 admission of Sidhu 28.
22 MR. DAIN: I'll just object to foundation as
23 to whether these are the test properties or not. Or is
24 it just a shot of the condominium unit?
25 THE COURT: Mr. Vincent?

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1 Q. (By Mr. Vincent) Mr. Sidhu do you know if


2 these are Units 603 and 604? Can you tell?
3 A. Not -- these are not, no.
4 Q. Do you know if 603 and 604 are on an island
5 and flooded differently than what's shown in this
6 picture?
7 A. Same -- same flooding.
8 MR. VINCENT: We move the admission, Your
9 Honor.
10 MR. DAIN: Objection. Foundation. I don't
11 see -- he was out of town. So I don't know -- I don't
12 understand the last answer. If he wants to lay a
13 foundation that this is a picture of the condominium
14 unit generally, that's okay.
15 THE COURT: All right. Admitted for that
16 purpose.
17 (Whereupon, Sidhu Exhibit 28 was
18 admitted into evidence.)
19 MR. VINCENT: Matt, Sidhu 53.
20 Q. (By Mr. Vincent) Mr. Sidhu, when did you
21 actually get to Houston after Harvey?
22 A. Early part of October.
23 Q. What did you find with regard to your
24 apartments?
25 A. I had some contractors take down all the

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1 Sheetrock, the insulation, cabinets, doors. So, before


2 I arrived, they had taken it all down, and this is what
3 I saw.
4 MR. VINCENT: Matt, Sidhu 52.
5 Q. (By Mr. Vincent) Mr. Sidhu, is that another
6 fair and accurate representation of what you saw when
7 you got to Houston and your units?
8 A. Yes, it is.
9 MR. VINCENT: Your Honor, we move the
10 admission of Sidhu 52 and 53.
11 MR. DAIN: No objection.
12 THE COURT: Admitted.
13 (Whereupon, Sidhu Exhibits 52 & 53
14 were admitted into evidence.)
15 Q. (By Mr. Vincent) Mr. Sidhu, what property
16 did you lose as a result of the Harvey flooding?
17 A. I lost both of those properties.
18 Q. Those are rental units; correct?
19 A. They were rental units, yes.
20 Q. Were you able to rent Unit 603 following
21 Harvey?
22 A. No. The tenant moved out.
23 Q. How long was it before you could renovate and
24 rent Unit 603?
25 A. Almost one year.

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1 Q. Now, to be clear for the record, Unit 604 is


2 also a test property; correct?
3 A. That's right.
4 Q. And, physically, it sits on top of 603;
5 correct?
6 A. It does.
7 Q. Was Unit 604 flooded by Harvey?
8 A. It was not.
9 Q. This may sound odd, but were you able to use
10 and enjoy the benefits of the rental property that is
11 Unit 603 in the normal and customary manner for those
12 11 months after Harvey?
13 A. I was not.
14 MR. VINCENT: Matt, JX129.
15 Q. (By Mr. Vincent) Mr. Sidhu, do you recognize
16 JX129?
17 A. That's a rental agreement I had with
18 Ms. Donna Clark for Unit 603.
19 Q. And that rental agreement was in effect at
20 the time of Harvey?
21 A. It was.
22 MR. VINCENT: Matt, Sidhu 51.
23 THE WITNESS: That was the starting date,
24 yes.
25 Q. (By Mr. Vincent) Do you recognize Sidhu 51?

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1 A. Yes. That's a notice of termination from


2 Ms. Clark.
3 Q. So after Harvey, she terminated her lease?
4 A. That's correct.
5 MR. VINCENT: Your Honor, we would move the
6 admission of Joint Exhibit 129 and Sidhu 51.
7 MR. DAIN: No objection.
8 THE COURT: Admitted.
9 (Whereupon, Joint Exhibit 129 was
10 admitted into evidence.)
11 (Whereupon, Sidhu Exhibit 51 was
12 admitted into evidence.)
13 Q. (By Mr. Vincent) You understand that in this
14 case we're making a claim under the Fifth Amendment for
15 a taking; correct?
16 A. That's correct.
17 Q. In your own words, can you tell me what that
18 means to you?
19 A. I'm not a lawyer, but I understand this is
20 something that the government took from me without
21 compensation.
22 Q. Okay. What did the government take from you?
23 A. The use of those rental properties.
24 MR. VINCENT: Pass the witness, Your Honor.
25 THE COURT: Thank you.

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1 Mr. Dain, cross-examination.


2 CROSS-EXAMINATION
3 BY MR. DAIN:
4 Q. Good afternoon, Mr. Sidhu.
5 A. Good afternoon.
6 Q. We met at your deposition, if you will
7 recall.
8 A. Yes.
9 Q. Let me back up and just talk a little bit of
10 background.
11 Where do you live?
12 A. In San Jose, California.
13 Q. And how long have you lived there?
14 A. Since about 1978.
15 Q. And have you ever lived in Houston?
16 A. I have not.
17 Q. And so when you did your search for the
18 investment properties, did you do that primarily
19 online?
20 A. That's correct.
21 Q. And so -- and prior to purchasing these units
22 in 2005, you had purchased other investment properties,
23 rental properties before that time; correct?
24 A. Yes, I had.
25 Q. And there are -- you purchased 29 units in

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1 the Aspenglen condominium area; correct?


2 A. Sir, say -- repeat that, please.
3 Q. 29 units?
4 A. 29 units, yes.
5 Q. And 14 of those units are in your wife's --
6 you share with your wife's name; correct?
7 A. That is correct.
8 Q. And if we could just pull up JX072 again.
9 And if we would just go -- you own this
10 property jointly with another person; correct?
11 A. That's my sister-in-law, my wife's sister.
12 Q. Both units, 603 and 604, are owned by you and
13 she together?
14 A. That's true.
15 MR. DAIN: Let me take care of a little
16 housekeeping before I get too far in, Your Honor. I
17 just want to note that fact stipulations in ECF211 for
18 Mr. Sidhu are those that are in paragraphs 43 through
19 49.
20 Could I also ask you to pull up DX839.
21 Q. (By Mr. Dain) Do you see DX839, Mr. Sidhu?
22 A. Yes, I do.
23 Q. Does that accurately identify the location of
24 the property within that photo?
25 A. It does.

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1 MR. DAIN: Okay. Please -- I would move in


2 DX -- Exhibit DX839 into evidence.
3 MR. VINCENT: No objection.
4 THE COURT: It's already in evidence.
5 MR. VINCENT: That's why.
6 MR. DAIN: All right. I hadn't realized
7 that.
8 The next one is 8 -- DX840. Is DX840 already
9 in through Mr. Stewart?
10 THE COURT: Short answer is yes.
11 MR. DAIN: Okay. Well, thank you, Your
12 Honor. I apologize.
13 Q. (By Mr. Dain) But, nonetheless, would you
14 just state, as to your property in DX840, does that
15 accurately identify your location -- the location of
16 the properties you own?
17 A. It does.
18 Q. Now, we saw JX252 earlier, which had the blue
19 tarp on it.
20 Do you remember that?
21 A. I do.
22 Q. Okay. And it had a blue tarp on it because
23 Unit 604, the upstairs unit, received some type of
24 damage during Harvey and it was leaking through the
25 roof; correct?

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1 A. The tenant thought he saw some water enter


2 his unit, and he thought it may be coming from the
3 roof. So just to be on safe side, the association
4 decided to put a tarp on it.
5 Q. Okay. But 604 was not damaged by these
6 floodwaters?
7 A. It was not.
8 Q. Now, you had to undertake repairs for
9 Unit 603, the downstairs unit; correct?
10 A. Yes.
11 Q. When were those repairs completed?
12 A. I believe in the summer of last year.
13 Q. Okay. And when did you get a renter back
14 into 603?
15 A. I don't have the exact date in front of me,
16 but late summer last year.
17 Q. Soon after you completed the repairs?
18 A. Yes.
19 Q. And for the resident in the upstairs unit,
20 604, at least from the time of your deposition, he had
21 remained a tenant from prior to Harvey, during Harvey,
22 and then through the -- through summer of last year;
23 correct?
24 A. That's correct.
25 Q. And did you visit the properties before you

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1 acquired them?
2 A. Yes, I did.
3 Q. About how long prior to your acquisition of
4 them did you go to Houston and see the properties?
5 A. Probably a month or so before.
6 Q. And if I --
7 MR. DAIN: No further questions.
8 THE COURT: Thank you, Mr. Dain.
9 Mr. Vincent.
10 REDIRECT EXAMINATION
11 BY MR. VINCENT:
12 Q. Mr. Sidhu, from the time of Harvey until you
13 could complete the renovations, were you completely
14 deprived -- deprived of the use of Unit 603 as a rental
15 property?
16 A. Yes, I was.
17 MR. VINCENT: Pass the witness.
18 THE COURT: May the Court excuse Mr. Sidhu as
19 a witness?
20 MR. DAIN: The witness may be excused.
21 THE COURT: Mr. Sidhu, thank you for coming
22 to testify. Thank you.
23 Mr. Easterby.
24 MR. EASTERBY: Yes, sir. We will call
25 Elizabeth Burnham at this time, Your Honor.

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1 THE COURT: Ms. Burnham, if you would stop


2 about right there and raise your right hand to be sworn
3 as a witness.
4 Thereupon--
5 ELIZABETH BURNHAM,
6 was called as a witness, and having been first duly
7 sworn, was examined and testified as follows:
8 THE WITNESS: I do.
9 THE COURT: Please be seated in the witness
10 stand and also state your full name for the record once
11 you've become comfortable.
12 THE WITNESS: I'm a little nervous. And my
13 name is Elizabeth Burnham, and I recently got married
14 and it's changing to Elizabeth Gwynne.
15 THE COURT: What is the last name now?
16 THE WITNESS: Gwynne, but I have not changed
17 it officially yet.
18 THE COURT: All right. So we'll keep Burnham
19 for the moment, if that's satisfactory.
20 THE WITNESS: Thank you.
21 THE COURT: Thank you.
22 DIRECT EXAMINATION
23 BY MR. EASTERBY:
24 Q. So I have to ask, just very briefly describe
25 your wedding ceremony for the Court, please.

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1 A. My wedding ceremony took place on Allen


2 Parkway. It was in the back of a trailer during the
3 Art Car Parade, and it was officiated by Santa Claus,
4 and Mayor Turner was my witness.
5 Q. Thank you.
6 I'm going to call you Ms. Burnham, if that's
7 okay, Ms. Burnham.
8 A. Thank you.
9 Q. You understand that you're one of the test
10 properties that was selected by the government in this
11 case?
12 A. I do.
13 Q. Okay. Is it correct you used to have a house
14 in Bear Creek Village?
15 A. Villages of Bear Creek.
16 Q. What was the address?
17 A. It was 15626 Four Season Drive.
18 Q. Okay.
19 Matt, could we please see Burnham Exhibit
20 No. 1, please. Please zoom in. I didn't know it was
21 quite that hard to see. That's -- that's a little
22 better.
23 Okay. Ms. Burnham, can you tell the court
24 approximately where is Four Season Drive in the
25 Villages of Bear Creek?

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1 A. Looks like to be the green rectangle.


2 Q. Okay.
3 I'll tell you what, Matt. Put up Plaintiffs'
4 Exhibit 454, if you would. And if you could zoom in --
5 actually, let me make a little bit of a record. Can
6 you zoom in the bottom right here, please.
7 Ms. Burnham, do you see this as a flood
8 insurance rate map dated September 28th, 1990?
9 A. Yes, I do.
10 Q. Okay.
11 Pull back out if you would, Matt, and then
12 get in this area right here.
13 Okay. Ms. Burnham, is this Four Season Drive
14 right here?
15 A. Yes, it is.
16 Q. All right. It's not labeled, but it's that,
17 I guess, second cul-de-sac?
18 A. Yes.
19 MR. EASTERBY: Okay. Your Honor, we would
20 move to admit Plaintiffs' Exhibit 454.
21 MS. TARDIFF: No objection.
22 THE COURT: Thank you, Ms. Tardiff.
23 Admitted.
24 (Whereupon, Plaintiffs' Exhibit 454 was
25 admitted into evidence.)

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1 MR. EASTERBY: Just so we have a good clean


2 record, Matt, please put up 461, Plaintiffs'
3 Exhibit 461, and please give me that date down there at
4 the bottom right.
5 Q. (By Mr. Easterby) Okay. Flood insurance
6 rate map dated June 18th, 2007.
7 Do you see that, Elizabeth?
8 A. Yes, I do.
9 Q. And, again, would you zoom into this same
10 area.
11 Okay. Ms. Burnham, can you see your street
12 on this?
13 A. I'm having trouble finding it.
14 Q. Do you think it's this one right here? If
15 you don't know, that's fine.
16 A. I don't know. But it looks about where it
17 should be.
18 Q. Right.
19 MR. EASTERBY: Your Honor, we move to admit
20 Plaintiffs' Exhibit 461.
21 MS. TARDIFF: No objection.
22 THE COURT: Admitted.
23 (Whereupon, Plaintiffs' Exhibit 461 was
24 admitted into evidence.)
25 Q. (By Mr. Easterby) Okay. So, Ms. Burnham,

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1 when did you buy --


2 THE COURT: That was 461; is that correct?
3 MR. EASTERBY: Yes, sir, it's --
4 THE COURT: That's admitted.
5 MR. EASTERBY: -- Plaintiffs' Exhibit 461.
6 THE COURT: Well, the problem is, the reason
7 I asked again, Plaintiffs' Exhibit 461 is already in
8 evidence.
9 MR. EASTERBY: Oh, I apologize, Judge, if
10 we -- I forgot about that.
11 Q. (By Mr. Easterby) Okay. Elizabeth, when did
12 you buy the house at 15626 Four Season Drive?
13 A. December of 2014.
14 Q. And what about that location, that
15 neighborhood was attractive to you? What were the
16 reasons for you buying the house?
17 A. It was quiet. You needed a GPS to get to
18 that location. It was on a cul-de-sac. I had two
19 children. I was a single mom. The school district was
20 good. It felt very safe. And it was going to be our
21 forever home.
22 Q. What school district is that house zoned to
23 or attached to?
24 A. It's zoned to Katy ISD, and my daughter
25 attended Mayde Creek at the time.

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1 Q. And, when you bought the house, do you recall


2 how much you paid for it?
3 A. About 164, 165.
4 Q. And, Elizabeth, is Bear -- is Villages of
5 Bear Creek a deed-restricted community?
6 A. Yes, it is.
7 Q. Was that a factor in your decision-making, it
8 being a deed-restricted community?
9 A. It was because it meant that the neighborhood
10 would stay nicer.
11 Q. Are you a native Houstonian?
12 A. I was raised in Houston, yes.
13 Q. What part of Houston?
14 A. Spring Branch.
15 Q. Okay.
16 A. And a little section in Conroe when my
17 parents divorced.
18 Q. And just for the Court, I don't know if I
19 need to bring up the monstrosity demonstrative again,
20 but Conroe is up on what?
21 A. North on 45.
22 Q. About 45, 50 miles north?
23 A. Yes.
24 Q. And Spring Branch, we took a site visit on
25 Wednesday as we were driving west on the I-10. That's

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1 kind of on your right between --


2 A. Yes.
3 Q. Stopping.
4 A. We lived off of Gessner and Hammerly –
5 Q. Okay.
6 A. -- growing up.
7 Q. When you were living at Four Season Drive,
8 was it your primary residence?
9 A. Yes.
10 Q. Okay.
11 Matt, please, put up Burnham 4.
12 And, Elizabeth, is this the warranty deed
13 that you signed back in December 2014 when you bought
14 the house?
15 A. Yes.
16 Q. Did you have a mortgage?
17 A. I did not. My mother took out a home equity
18 loan so I could purchase the house, and I am supposed
19 to eventually pay my mother back for this house.
20 MR. EASTERBY: And, Your Honor, we would move
21 to admit Burnham 4 into evidence.
22 MS. TARDIFF: No objection, Your Honor,
23 except that this is also marked as Joint Exhibit 121.
24 THE COURT: Burnham 4 is actually admitted as
25 JX121. Did I hear you correctly, Ms. Tardiff?

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1 MS. TARDIFF: Yes, sir.


2 THE COURT: Thank you.
3 MR. EASTERBY: Please put up Burnham No. 5,
4 Matt.
5 Q. (By Mr. Easterby) Okay. Elizabeth, is this
6 the contract you signed when you bought the house?
7 A. Yes.
8 MR. EASTERBY: And, Matt, could you just
9 scroll down a little bit so you can see -- a little
10 further. I think there's some initials on the front
11 page.
12 Q. (By Mr. Easterby) Do you see your initials
13 down there?
14 A. Those are my mother's initials and Teresa
15 Arenas, the seller.
16 MR. EASTERBY: Your Honor, we admit Burnham 5
17 into evidence.
18 MS. TARDIFF: No objection, Your Honor, but
19 this is Joint Exhibit 120.
20 THE COURT: Thank you. It is admitted, but
21 it's admitted as JX120.
22 (Whereupon, Joint Exhibit 120 was
23 admitted into evidence.)
24 Q. (By Mr. Easterby) Elizabeth, does this
25 reflect how much total money was paid for this house

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1 back in December of 2014?


2 A. Yes.
3 Q. Could you just please read that so we have a
4 good record.
5 A. 14,900 was the down payment, and 150 was the
6 loan amount.
7 Q. Okay. So total?
8 A. 164,900.
9 Q. Understood.
10 And when you bought the house, was it your
11 hope, at least, that the property value would go up?
12 A. I was hoping I could live there for the rest
13 of my life.
14 Q. Oh, that's right.
15 All right. Matt, would you please put up
16 Burnham No. 6.
17 And, Elizabeth, do you recognize this
18 document appears to be a seller's disclosure from when
19 you and your mom bought the house on 15626 Four Season
20 Drive?
21 A. Yes.
22 MR. EASTERBY: Okay. Your Honor, we'd move
23 to admit Burnham No. 6 into evidence. If it's a joint
24 exhibit, I apologize in advance.
25 MS. TARDIFF: It is a joint exhibit. It's

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1 Joint Exhibit 119.


2 And no objection.
3 THE COURT: Exhibit is admitted as Joint
4 Exhibit 119.
5 (Whereupon, Joint Exhibit 119 was
6 admitted into evidence.)
7 MR. EASTERBY: And if you would, Matt, go to
8 the second page. And please zoom in on this column
9 over here.
10 Q (By Mr. Easterby) Okay. Do you see that,
11 under "previous flooding into the structures," it has a
12 "yes"?
13 A. Uh-huh. Yes.
14 Q. Okay.
15 And, Matt, please go to the next page of this
16 joint exhibit that's been admitted. Top -- yes, top
17 part right there.
18 So, Elizabeth, when you bought the house, you
19 knew there had been prior flooding; is that right?
20 A. Yes, I did.
21 Q. What explanation were you and your mom given
22 as to what had happened?
23 A. I was told it was a freak storm and that it
24 had never flooded before.
25 Q. When you bought the house, did you have any

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1 idea or understanding that it could be flooded by


2 rising reservoir pools from the Addicks Reservoir?
3 A. Absolutely not.
4 MR. EASTERBY: Matt, please put up Defense
5 Exhibit 196, which I believe was previously admitted
6 today into evidence. And step through to the page
7 that's Bates-stamped 1289.
8 Q (By Mr. Easterby) You were here this morning
9 when this was discussed with Mr. Long?
10 A. Yes, I was.
11 Q. And you saw that was a June 2009 PowerPoint?
12 A. I did see that.
13 Q. So the page we're looking at here says "First
14 home inundation," and this is the Addicks Reservoir;
15 correct?
16 A. Yes.
17 MR. EASTERBY: Could you zoom in up here in
18 the area we saw for Ms. Burnham's property, Matt.
19 Q (By Mr. Easterby) Can you see this shaded
20 area up here, Ms. Burnham?
21 A. Yes, I can.
22 Q. Having listened today and watched, what does
23 that indicate to you from this Corps of Engineers
24 document dated June of '09?
25 A. It indicates that my house would be one of

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1 the first ones to flood.


2 MR. EASTERBY: And pull back out, if you
3 would, Matt.
4 Q (By Mr. Easterby) You see that pool
5 elevation right there, Elizabeth?
6 A. Yes, I do.
7 Q. Okay. So the seller's disclosure we saw said
8 there was an April 2009 storm; right?
9 A. Yes, sir.
10 MR. EASTERBY: And first page of this,
11 please, Matt.
12 Q (By Mr. Easterby) This is couple months
13 later; yes?
14 A. Yes.
15 Q. Did you ever see this before you bought the
16 house?
17 A. No, I did not.
18 Q. You -- you've been to some of the Corps of
19 Engineer presentations; is that right?
20 A. After the Tax Day Flood.
21 Q. After the Tax Day Flood.
22 Did you ever see a slide like that in any of
23 those presentations?
24 A. I don't think I did. I'm not sure.
25 Q. In any of those presentations, did Mr. Long

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1 or anybody else from the Corps say that they had


2 flooded structures in the past in the Addicks Reservoir
3 area?
4 A. They did not say that.
5 Q. What did they say?
6 A. They said my house was in the reservoir.
7 Q. When was that?
8 A. It was after the Tax Day Flood at a church in
9 Bear Creek.
10 Q. Was that the first time you'd learned that?
11 A. Yes, it was.
12 Q. Okay. Let's look at Burnham No. 9, please.
13 Elizabeth, I believe this is the MLS listing
14 agreement for the house that you purchased back in
15 December of 2014.
16 Do you recognize it?
17 A. It looks familiar.
18 MR. EASTERBY: And, Matt, just step through
19 so she can see some of the photographs that are
20 embedded within this document.
21 Q (By Mr. Easterby) Take a look at your
22 screen, please, Elizabeth, and just --
23 A. Yes.
24 Q. Do those fairly and accurately depict what
25 the house looked like when you bought it back in

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1 December of 2014?
2 A. Yes. That is what it looked like before I
3 purchased it.
4 Q. Okay. Before we get into Tax Day, let me
5 just ask you a couple of background questions I forgot
6 to ask.
7 What do you do for a living?
8 A. I buy scrap metal.
9 Q. How long have you been working there?
10 A. Since around 2012.
11 Q. And do you have a daughter?
12 A. I have a daughter.
13 Q. How old is she now?
14 A. She is 16.
15 Q. Does she still go to that same high school
16 you mentioned earlier?
17 A. She does not.
18 Q. Why not?
19 A. Because I could not afford to buy another
20 house in the Katy school district that did not flood.
21 Q. Did you buy -- did you end up selling the
22 house on Four Season, Elizabeth?
23 A. Yes. I sold that house on Four Season Drive
24 for $80,000.
25 Q. And you paid 165?

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1 A. That is correct.
2 Q. Did you -- where did you move to?
3 A. I moved to the other side of Highway 6, to
4 the Glencairn neighborhood.
5 Q. Is that west of Four Season?
6 A. Yes, it is.
7 Q. Is it outside of the government's flood pool?
8 A. The maps say it is.
9 Q. Did you make sure this time?
10 A. Yes.
11 Q. Okay. Let's talk about Tax Day 2016. Do you
12 remember that?
13 A. Yes, I do.
14 Q. Were you home?
15 A. I was home.
16 Q. Did you get water in your house?
17 A. Yes. We got about 3 feet of water. I felt a
18 little inundated.
19 Q. Indeed.
20 Do you know about when it came in or, I mean,
21 the exact date? Do you have a recollection of that, or
22 do you know?
23 A. At 4:00 a.m., when we woke up, because that
24 was when my fiancé goes to work, the water was at his
25 windows, out in the street, of his car.

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1 And by 4:30 in the morning, it was in the


2 house. And, by 5:00 a.m., it was 3 feet in the house.
3 Q. That storm lasted for several days. Do you
4 know what day it was specifically?
5 A. The Tax Day?
6 Q. I mean, when the water came in. I mean, was
7 it the 19th, 18th, 20th?
8 A. I think it was the 18th.
9 Q. Okay. Did you have flood insurance?
10 A. I did not.
11 Q. After Tax Day, did you look into getting
12 flood insurance?
13 A. I did.
14 Q. And what did you find out?
15 A. I found out I could not afford it because of
16 where my house was located.
17 Q. How much was the quote for your flood
18 insurance?
19 A. It was between 4,000 and 4500.
20 Q. And I think you mentioned going to a meeting
21 after that?
22 A. It was the -- after the Tax Day Flood. It
23 was at the church, yes.
24 Q. Was that with Congressman Poe and the folks
25 from the Corps?

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1 A. Congressman Poe, folks from the Corps, and


2 there were a few city officials from Harris County.
3 Q. During that meeting, did the Corps of
4 Engineers at any point in time say that some of these
5 structure flooding in the Villages of Bear Creek had
6 been caused by restricted drainage from the rising
7 Addicks Reservoir pool?
8 A. No.
9 MR. EASTERBY: Matt, please put up
10 Plaintiffs' Exhibit 20, which has been admitted.
11 Please zoom into this "current issue"
12 portion.
13 Q (By Mr. Easterby) You've been here all week,
14 last week, have you not, Elizabeth?
15 A. Yes, I have.
16 Q. And this language that talks about how one
17 cause of the upstream flooding was the restricted
18 drainage from neighborhood stormwater management
19 systems that drain into Addicks Reservoir, the
20 restriction was due to the elevated reservoir pools.
21 Prior to this litigation, had you ever seen
22 that document before?
23 A. No.
24 Q. Did they mention that in the Ted Poe meeting
25 after Tax Day?

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1 A. No.
2 Q. Anything like that at all?
3 A. Not really, no.
4 Q. Were you satisfied with their answers at that
5 meeting?
6 A. After the meeting, I felt like I was
7 gut-punched. And there was nothing I could do because
8 what was I going to do? Turn around and sell a house
9 that was flooded and not repaired? I couldn't do that.
10 Q. Did you make some repairs to the house after
11 Tax Day?
12 A. Yes. We worked extensively for a year and
13 turned it back into a home.
14 Q. Okay. Let's talk about Harvey and -- and
15 that experience.
16 Do you remember there being some heavy rain
17 in early August of '17 before Harvey made landfall?
18 A. Yes, I do.
19 Q. Prior to Harvey making landfall, did you do
20 anything to try to protect your property or get out in
21 front of some potential flooding?
22 A. Like the week before Harvey?
23 Q. Yeah.
24 A. The week before Harvey, starting Wednesday,
25 we started moving furniture up as fast as we could. We

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1 moved my refrigerator to the landing of the stairs. We


2 picked furniture up. We took as much as we could
3 upstairs.
4 Q. Did you make any phone calls to anybody?
5 A. Yes. I tried to call the Galveston District
6 Army Corps of Engineers, and their phones were not
7 working. So I ended up calling the Conroe. And a man
8 gave me someone else's cell phone number for the
9 Galveston District.
10 Q. Did you call that cell phone number?
11 A. I sure did.
12 Q. And can you tell us what you learned after
13 you had that conversation?
14 A. I called and asked what the levels the
15 reservoir was at. And I was told it was empty. And
16 then I asked about flooding for the upcoming storm that
17 was being reported on the news. And I was told to
18 prepare for flooding.
19 And I also asked about emergency notification
20 because, during Tax Day, we found out at 5:00 a.m. that
21 we were going to flood. And as I stated before, we
22 were already flooded by then. We found out from the
23 emergency broadcast.
24 Q. Did you do anything in terms of making sure
25 your storm drains were clear or your gutters, anything

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1 like that?
2 A. Yes. I called 311 to ask them to check on
3 people, Harvey.
4 Q. For the Corps and Judge Lettow, what does it
5 mean to call 311 in Houston?
6 A. It's Houston information about public
7 services.
8 Q. And did they say anything about the condition
9 of the storm drains?
10 A. They said they were clear and that -- well,
11 they said they would check them and that they were
12 clear.
13 Q. Okay.
14 So, Matt, would you please put up Burnham
15 No. 19.
16 And, Elizabeth, this is an August 17th, 2017,
17 document entitled "The Weird Homes Tour Agreement."
18 Do you see that?
19 A. Yes, I do.
20 Q. Is this an agreement that you actually signed
21 and entered into?
22 A. Yes, it is.
23 MR. EASTERBY: Your Honor, we would move
24 Burnham 19 into evidence.
25 MS. TARDIFF: No objection.

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1 THE COURT: Admitted.


2 (Whereupon, Burnham Exhibit 19 was
3 admitted into evidence.)
4 Q (By Mr. Easterby) So, Elizabeth, very
5 briefly, what is a Weird Homes tour agreement? What's
6 this all about?
7 A. In a nutshell, Weird Homes shows houses that
8 are out of the ordinary, that aren't cookie-cutter,
9 decorated by Hobby Lobby. Actual artists fix their
10 houses up and make them different from others.
11 Q. And was this after you had done the work to
12 repair the house from Tax Day?
13 A. Yes, it is. And I was very proud.
14 Q. Okay.
15 MR. EASTERBY: Judge, I'm about to step into
16 Harvey. And I probably have another 25 minutes.
17 Shall I continue?
18 THE COURT: Ms. Tardiff, what is your plan?
19 MS. TARDIFF: It's at your pleasure, Your
20 Honor. We're happy to stay and allow Ms. Burnham to
21 continue.
22 THE COURT: I'm a little afraid not to stay,
23 Mr. Easterby.
24 MR. EASTERBY: Your Honor, I forgot to move
25 to admit Burnham 9, I think. So we'd move to admit

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1 this -- I should say Burnham 19, the Weird Homes tour


2 agreement.
3 THE COURT: No, you did.
4 Right, Ms. Tardiff?
5 MS. TARDIFF: Yes. No objection.
6 THE COURT: No, that has been admitted.
7 The reason I guess I'm willing to stay, I
8 think we can stay for at least another 25 minutes.
9 MR. EASTERBY: Sure, Judge.
10 I think what I forgot to admit was 9 Burnham,
11 that MLS listing that had the pictures of the home when
12 she bought it. And we would move to admit that.
13 MS. TARDIFF: No objection.
14 THE COURT: Admitted.
15 (Whereupon, Burnham Exhibit 9 was
16 admitted into evidence.)
17 Q (By Mr. Easterby) So, Elizabeth, did you
18 stay in your home for the Harvey event?
19 A. Absolutely not.
20 Q. And when did you leave the house, if you can
21 remember?
22 A. We left the Friday before the storm.
23 Q. Did any of your neighbors stay?
24 A. My neighbor across the street stayed, yes.
25 Q. And could you tell us her name, please?

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1 A. Her name is Toni. I don't remember her last


2 name. I know it begins with an M.
3 MR. EASTERBY: Okay, Your Honor. I'm going
4 to hand Ms. Burnham and the Court Burnham 54, which is
5 a shortened version of the photographs that previously
6 had the same exhibit number.
7 Q (By Mr. Easterby) And, Elizabeth, if you
8 would, just flip through these very quickly and tell me
9 if you recognize them.
10 A. Yes. They pretty much look like the
11 pictures.
12 Q. Okay. Just for the sake of good order, the
13 first one is Bates-stamped Burnham000001, August 25th,
14 2017, 11:28 a.m.
15 And can you recognize what's depicted in
16 there?
17 A. This is my airplane room. And it has
18 airplanes above the front door. You can't see it up
19 top, but I have a pedal plane and another one following
20 it doing the flight plan for Weiser Airport.
21 Q. And I think this is one of those pano shots
22 with the iPhone?
23 A. Yes. And it's got my couch sitting up on the
24 table. And we raised the curtains so they wouldn't get
25 wet.

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1 Q. Okay.
2 MR. EASTERBY: Your Honor, we would move to
3 admit Burnham 54, as conformed and distributed today,
4 into evidence.
5 THE COURT: Burnham 54A.
6 MR. EASTERBY: 54A, yes, sir.
7 MS. TARDIFF: No objection to 54A.
8 THE COURT: Admitted.
9 (Whereupon, Burnham Exhibit 54A was
10 admitted into evidence.)
11 Q (By Mr. Easterby) Okay. Go, if you would,
12 to the second page, Elizabeth. Can you recognize the
13 house that's behind the lady wearing the cap in this
14 photo?
15 A. Yes. That is my house.
16 Q. And can you read for us at the bottom the
17 date and time this photograph was taken?
18 A. Burnham, August 30, 2017, 11:51 a.m.
19 Q. So that's your house in the background?
20 A. Yes, it is.
21 Q. And do you know about how much water came
22 into your house when that Addicks pool got to its peak
23 on August 30th?
24 A. About 5 feet.
25 Q. When did you first make it back into the

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1 neighborhood? When were you first able to get back to


2 your home?
3 A. I think it was September 8th. I don't
4 remember the exact date. But it was flooded for a long
5 time.
6 Q. And where did you stay when you were out of
7 the house?
8 A. I stayed at my mother-in-law's house. And
9 then we got a hotel room at the Windham.
10 Q. Okay. If you look at the next page,
11 Burnham 8, it says September 8th, 6:17 p.m. Do you see
12 that?
13 A. Yes, I do.
14 Q. Is that a picture from inside your home?
15 A. Yeah. That's from when we came back. That's
16 my mother's childhood desk.
17 Q. Were you able to salvage that?
18 A. The bottom part was so far gone. I still
19 have the top half but not the bottom. It's disgusting
20 and in a garage somewhere.
21 THE COURT: This is 54C, Mr. Easterby.
22 MR. EASTERBY: I'm sorry, Judge.
23 THE COURT: What happened to 54B? Nothing?
24 MR. EASTERBY: I didn't even know there was a
25 54B.

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1 THE COURT: I'm sorry?


2 MR. EASTERBY: I didn't know there was a 54B.
3 THE COURT: There is now.
4 MR. EASTERBY: This is 54B.
5 THE COURT: Right.
6 MR. EASTERBY: Yes, sir. I'm sorry.
7 Q (By Mr. Easterby) So, I mean, I'm about 6-5,
8 Elizabeth. How -- how high was the water? I mean, was
9 it chest high, over 4 feet, or do you know?
10 A. About --
11 MS. TARDIFF: Objection. Foundation.
12 THE COURT: Sustained.
13 Q (By Mr. Easterby) How high was the water in
14 your house if you know?
15 A. It was about chest level on myself.
16 Q. Okay. How tall are you?
17 A. I am 5-8.
18 Q. All right. Thank you.
19 Turning again to Exhibit 54B, look with me,
20 if you would, at the page that's Bates-stamped
21 Burnham 10.
22 A. Uh-huh. Yes.
23 Q. And what is that?
24 A. That is a family heirloom dresser laying in a
25 pile of sewage.

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1 Q. Was it laying on the ground when you left the


2 house?
3 A. No, it was sitting up on the mantel -- or the
4 fireplace thing, levitated by the two chairs stuck to
5 the bottom of it. It floated over.
6 Q. Were you able to salvage any of the furniture
7 that was downstairs?
8 A. I saved a Singer sewing machine, the antique
9 iron piece, and I threw away the wood top to it. And
10 another Singer sewing machine piece that I planned to
11 salvage was stolen from my yard.
12 The desk in the previous picture is in a
13 garage. I haven't been able to fix it to make it
14 salvageable. I just can't bring myself to throw it
15 away because it's my mother's.
16 Q. Understood.
17 I'll tell you what. Flip with me ahead, if
18 you would, two pages to -- it's a refrigerator that's
19 Bates-stamped Burnham 17. Where is this in your former
20 home?
21 A. That was our garage refrigerator.
22 Q. Okay. And go with me to the next page,
23 Burnham 25.
24 A. Yes.
25 Q. What is this a picture of, Elizabeth?

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1 A. That -- that is ponding by the downspout


2 things in the street, the -- I'm sorry. I'm losing the
3 word.
4 Q. Storm sewer?
5 A. Yes.
6 Q. So what's the date and time of this
7 photograph?
8 A. 6:58 p.m., September 8th.
9 Q. Did you take this picture?
10 A. It was either me or my fiancé.
11 Q. Husband now?
12 A. Yes, husband.
13 Q. And back at that time on September 8th, did
14 you observe that the storm drains were not actually
15 draining?
16 A. Yes. And there were tadpoles swimming around
17 in the water.
18 Q. Okay. Flip to the next page if you would,
19 please.
20 Are we back inside the house now?
21 A. Yes, we're back inside the house.
22 Q. And is this your kitchen?
23 A. No. That is the airplane room leading up to
24 the upstairs.
25 Q. Is that the kitchen refrigerator?

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1 A. That is the kitchen refrigerator. We placed


2 it on the landing, hoping there wouldn't be enough
3 water to float it away. We were tired and did not want
4 to carry it all the way up the stairs.
5 Q. And I -- I notice that your staircase has got
6 some license plates going up there; is that right?
7 A. Yes. I put license plates on all the stairs
8 going up to the upstairs.
9 Q. Is that -- is that part of the Weird Homes
10 tour allure?
11 A. Yes, it was.
12 Q. Next page, please.
13 What -- what do you see on this red piece of
14 furniture, Elizabeth?
15 A. Mold growing on the couches that you saw
16 earlier, on the table that was lifted up high.
17 Q. If you would go to the next page. That's --
18 that's you up front, is it not?
19 A. Yes, it is.
20 Q. Can you read the sign that you're holding?
21 A. "Go confidently in the direction of your
22 dreams, Robert Thoreau."
23 Q. So, Elizabeth, after Harvey and after
24 September 11th, 2017, the date of the last photo, did
25 y'all give some thought to staying in Villages of Bear

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1 Creek?
2 A. We tossed it back and -- back and forth. And
3 I was in shock. And I wanted to, but I -- I also
4 couldn't do this another time.
5 Q. After Harvey, did the character of the
6 Villages of Bear Creek change? Meaning, before, how
7 was it? After, how was it? In your own words, please.
8 A. Before Harvey, I felt very safe in this
9 neighborhood, and cars weren't on our cul-de-sac unless
10 they needed to be. One day I came home, and I brought
11 my groceries in and I set my purse down on the bench in
12 front of my house. And I came back out the next
13 morning because I forgot it, and it was still there,
14 intact with my wallet and everything.
15 Q. And after?
16 A. After Harvey, it was like a zombie
17 apocalypse. And my house was broken into, and when I
18 saw that, I came outside, and I was just so frustrated
19 about everything that had happened that I could scream
20 bloody murder in the streets and nobody would come see
21 you because nobody was there. And the stench. And it
22 was just horrific.
23 Q. I'm sorry. I've got two more photos. I
24 promise we'll get off them.
25 A. That's okay.

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1 Q. The one that's Bates-stamped Burnham 116,


2 it's got a cone on it and a sign.
3 Do you recognize that photo, Elizabeth?
4 A. Yeah.
5 Q. After Harvey, did y'all have some problems in
6 that neighborhood with crime and looting and things
7 like that?
8 A. Yes.
9 Q. Okay. And turn ahead one page, please.
10 Is that your front yard after Harvey?
11 A. I'm not sure. I want to say it's Steve and
12 Kristine's house across the street and to the right.
13 Q. Fair enough.
14 A. Or Toni's house. I'm not sure.
15 Q. Okay. After Harvey, did you live in the
16 house?
17 A. Absolutely not. It was not safe.
18 Q. Where did y'all live?
19 A. We stayed with my husband's mother for a
20 short time until we could get a FEMA room at the
21 Wyndham, and my son stayed at my office because he had
22 stated that brothers and sisters shouldn't be forced to
23 sleep in the same bed.
24 And then we moved into an apartment called
25 The Enclave on Barker Cypress for six months. While we

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1 were there, we were cleaning out the house, and we


2 decided that it might be best to sell it.
3 MR. EASTERBY: Matt, would you put up
4 Burnham 20, please.
5 Q. (By Mr. Easterby) Elizabeth, do you
6 recognize this document?
7 A. That's for the sale of my house.
8 MR. EASTERBY: And, Matt, could you show us
9 the date that's a little bit below that, please.
10 Q. (By Mr. Easterby) January of 2018?
11 A. Yes.
12 Q. And the sales price was how much, Elizabeth?
13 A. 80,000.
14 Q. Did you have a Realtor?
15 A. I did.
16 Q. So you paid 164,900; you sold it for 80,000.
17 Is that right?
18 A. That is correct.
19 Q. Who did you sell it to?
20 A. I don't know exactly the name of the
21 investor, Giering Investments.
22 Q. Are you related to Giering Investments?
23 A. I am not, and I hope I never meet that snake
24 in the grass.
25 Q. Okay. Elizabeth, on account of the

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1 submerging and the damage we've been talking about,


2 were you able to use your -- your home on Four Season
3 in the way that you had become accustomed to?
4 A. No.
5 Q. In this case, we've alleged that the
6 government has taken something from the plaintiffs
7 under the Fifth Amendment.
8 In your own words, can you tell us what you
9 think was taken?
10 A. My home. My sense of security. My ability
11 to pay my mother back. My daughter being able to
12 graduate with her friends. Living in a nice house. My
13 new house is not nearly as nice as this one. It makes
14 me sick. My mother has COPD, and she -- by the time
15 I'm able to pay her back, it won't matter.
16 MR. EASTERBY: Your Honor, I'm informed I
17 forgot to offer Burnham 20 into evidence. We would
18 offer Burnham 20 into evidence.
19 MS. TARDIFF: No objection.
20 THE COURT: Admitted.
21 (Whereupon, Burnham Exhibit 20 was
22 admitted into evidence.)
23 THE COURT: Mr. Easterby, we have a bigger
24 problem than that. All those photographs need to be
25 specifically identified. They are not in evidence.

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1 MR. EASTERBY: So, Judge, each page is A, B,


2 C. Is that the protocol?
3 THE COURT: We skipped some pages. I'm not
4 going to have a bulk admission. I'm just not going to
5 do it.
6 MR. EASTERBY: Okay, Your Honor. I'll do it
7 right now. So -- and I apologize for asking, but do
8 you want to go 54A, B, C, D or --
9 THE COURT: The ones that you've had
10 Ms. Burnham testify about are the ones you probably
11 want in evidence.
12 MR. EASTERBY: That's correct. But I'm going
13 to just go through it now just so there's no problems
14 in the future.
15 Q. (By Mr. Easterby) Elizabeth, please go to
16 the first page of what's been marked for
17 identification --
18 THE COURT: Well, you don't need to do it
19 with Ms. Burnham. She's already been through them.
20 What you need to do is identify specifically which ones
21 you had Ms. Burnham testify about, and then we'll deal
22 with them.
23 MR. EASTERBY: Okay. Your Honor, I
24 believe --
25 THE COURT: I was waiting for you to address

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1 these specifically, and you have not done so


2 previously.
3 MR. EASTERBY: I believe we spoke about
4 BURNHAM00001.
5 THE COURT: Why don't we put that up on the
6 screen, and we'll figure out whether -- first one has
7 been admitted.
8 MR. EASTERBY: Okay. And then the second
9 page.
10 THE COURT: That one has been admitted.
11 MR. EASTERBY: And the second page,
12 BURNHAM00006, we would offer --
13 THE COURT: That one, the Court had
14 previously commented it was 54B.
15 MR. EASTERBY: I see. I've got you now,
16 Judge.
17 Okay. We would offer Burnham 00006 as 54B.
18 THE COURT: All right. Let's keep going.
19 MR. EASTERBY: We would offer BURNHAM00008 as
20 54C.
21 THE COURT: Thank you.
22 MR. EASTERBY: We would offer BURNHAM000010
23 as 54D.
24 THE COURT: This is the -- what I think of as
25 the chest?

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1 MR. EASTERBY: Correct, sir.


2 THE COURT: That's right.
3 Q. (By Mr. Easterby) The next one is
4 Burnham 13. We didn't talk about that one, Elizabeth.
5 Who is that, and what he is pointing at?
6 A. That is my husband, and he's pointing at the
7 waterline in the backyard.
8 MR. EASTERBY: We would offer -- this is
9 Burnham 54E.
10 THE COURT: Yes.
11 MR. EASTERBY: The garage refrigerator,
12 Burnham 17, we would offer as 54F.
13 THE COURT: Yes.
14 MR. EASTERBY: The storm drain that's not
15 draining, Burnham 25, we would offer as Burnham 54G.
16 THE COURT: Yes.
17 MR. EASTERBY: The refrigerator inside, which
18 is Burnham 32, we would offer as Burnham 54H.
19 THE COURT: Yes.
20 MR. EASTERBY: The moldy couch, Burnham 49,
21 we'd offer as Burnham 54I.
22 THE COURT: Yes.
23 Q. (By Mr. Easterby) The car in the driveway,
24 Burnham 61, is that your car Elizabeth?
25 A. That is my car, Penelope.

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1 MR. EASTERBY: We would offer as 54J.


2 The sign of Elizabeth holding the sign saying
3 "Go confidently in the direction of your dreams," we
4 would offer as 54K.
5 THE COURT: Yes.
6 MR. EASTERBY: The next one we did not talk
7 about, Burnham 72.
8 Q. (By Mr. Easterby) Do you recognize that,
9 Elizabeth?
10 A. Yes. That's my kitchen.
11 Q. That was your kitchen.
12 A. Yes. We remodeled it for Harvey to look like
13 that.
14 MR. EASTERBY: We'd offer that as 54L, Your
15 Honor.
16 And the next page, Burnham 116, the cone with
17 the sign "Drive like your kids live here. Road closed
18 at dark," we would offer as 54M.
19 The front yard across the street -- I'll
20 offer that anyway. 54N.
21 THE COURT: Are you finished?
22 Q. (By Mr. Easterby) Last one, Elizabeth, 133
23 is 54O. Can you tell what this is?
24 A. We did a screenshot of the newscast that was
25 about the Harvey talk with FEMA and Ted Poe. This one

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1 was at the elementary school on West Little York, and


2 we took a picture of him because I was asked later at
3 FEMA who stated that my benefits at the hotel would be
4 extended. And I found that on my -- on the newscast to
5 show them because we were living week to week not
6 knowing if we would have a place to live, because they
7 kept threatening to pull it if we didn't find a place.
8 Q. Did you go to that meeting?
9 A. Yes, I did go to that meeting, and I think
10 Channel 2 filmed me talking about it.
11 Q. Was Mr. Long at that meeting?
12 A. I do not recall.
13 MR. EASTERBY: That's all the questions I
14 have, Your Honor. I will pass the witness.
15 THE COURT: Are you moving to admit --
16 MR. EASTERBY: Yes, sir.
17 THE COURT: -- 54B through O?
18 MR. EASTERBY: I am, Your Honor.
19 MS. TARDIFF: No objection.
20 THE COURT: Admitted.
21 (Whereupon, Burnham Exhibits 54B -
22 54O were admitted into evidence.)
23 THE COURT: May we take our evening break? I
24 know we're interrupting -- well, let me ask
25 Ms. Tardiff. What should we do?

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1 MS. TARDIFF: Your Honor, I probably have 20


2 minutes.
3 THE COURT: Ms. Burnham, can you come back
4 tomorrow morning?
5 THE WITNESS: I would love to.
6 THE COURT: You would love to. All right.
7 With that, we will take our evening recess.
8 Well, let me talk with counsel for a moment.
9 What time would you rather come in the
10 morning? 9:00, our regular time?
11 MR. CHAREST: I would rather go regular time
12 start and go later, personally, than starting earlier,
13 but I'm -- whatever the Court likes.
14 THE COURT: Ms. Tardiff.
15 MS. TARDIFF: Your Honor, at your pleasure.
16 I think that may be for witnesses who have to travel
17 in.
18 THE COURT: So we'll start at 9:00 in the
19 morning, and we'll probably go till about this time
20 tomorrow evening.
21 MR. CHAREST: Thank you, sir.
22 THE COURT: We're in recess for the evening.
23 THE CLERK: All rise. Court is adjourned.
24 (Thereupon, the proceedings
25 concluded at 5:25 p.m.)

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1 CERTIFICATE OF TRANSCRIBER
2
3 I, Kristy L. Clark, court-approved transcriber,
4 certify that the foregoing is a correct transcript from
5 the official electronic sound recording of the
6 proceedings in the above-titled matter.
7
8
9
10 DATE: 5/14/19 s/Kristy L. Clark
11 KRISTY L. CLARK, RPR
12
13
14
15
16
17
18
19
20
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22
23
24
25

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1790
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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 ADMITTED EXHIBITS
2
3 JX PAGE DESCRIPTION
4 41 1621 9/7/1989 Closing Docs from Purchase
5 of Home
6 72 1735 3/29/2005 Warranty Deed granted to
7 Kulwant Sidhu and Manvinder Grewal
8 76 1657 10/19/2005 HAR Property detail for
9 Giron
10 78 1687 10/31/2005 Settlement Statement
11 indicating property part of 500 year
12 floodplain of Giron
13 79 1689 10/31/2005 Deed of Trust
14 82 1701 8/1/2007 Universal Land Title Deed of
15 Trust for Todd and Christina Banker
16 104 1726 10/6/2010 Banker Property - Deed of
17 Trust, stamped "Unofficial", for 4614
18 Kelliwood Manor Lane
19 119 1759 11/6/2014 Burnham Property -Seller's
20 Disclosure Notice
21 120 1757 12/8/2014 Burnham Property - Closing
22 documents
23 129 1744 9/20/2016 Sidhu Property - Rental
24 Residential Lease for 16111
25 Aspenglenn Drive, Unit 603

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1791
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1 248 1692 Aerial Property Map for Giron


2 252 1736 Sidhu Property - Aspen Glen Condo
3 Overhead View
4
5 PX PAGE DESCRIPTION
6 1 1649 07/16/18 Plaintiffs' Notice of Rule
7 30(b)(6) Deposition of U.S.
8 104-10 1489 07/19/11 COE response to Mary Carter:
9 FOIA request re Permit for Segment E
10 of Grand Pkwy
11 104-11 1489 07/19/11 COE response to Mary Carter:
12 FOIA request re Permit for Segment E
13 of Grand Pkwy
14 104-13 1489 07/19/11 COE response to Mary Carter:
15 FOIA request re Permit for Segment E
16 of Grand Pkwy
17 104-14 1489 07/19/11 COE response to Mary Carter:
18 FOIA request re Permit for Segment E
19 of Grand Pkwy
20 454 1752 9/28/1990 FIRM 48201C0175G
21 461 1585 6/18/2007 FIRM 48201C0610L
22 660 1443 11/5/2018 Declaration of Randall
23 Bell, PHD, MAI, including all
24 exhibits and attachments thereto
25

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 1597 1479 6/1/2009 Addicks Barker Reservoir


2 Information Meeting
3 1735 1452 8/27/2017 FW: Addicks-Barker SL
4 Product/COP
5 1736 1451 8/27/2017 Addicks and Barker Proposed
6 Talking Points
7 1747 1475 9/5/2017 Richard Long email to Jon
8 Sweeten, LA District
9 1812 1455 9/28/2017 Draft Q&A
10 2036-10 1674 Images from DOJ Initial Disclosures
11 (1-30-2018), https://storms.ngs.noaa.
12 gov/storms/harvey/index.html#10/
13 29.6797/-95.4540
14 2036-14 1702 Images from DOJ Initial Disclosures
15 (1-30-2018), https://storms.ngs.noaa.
16 gov/storms/harvey/index.html#10/
17 29.6797/-95.4540
18 2036-15 1703 Images from DOJ Initial Disclosures
19 (1-30-2018), https://storms.ngs.noaa.
20 gov/storms/harvey/index.html#10/
21 29.6797/-95.4540
22 2036-29 1639 Images from DOJ Initial Disclosures
23 (1-30-2018), https://storms.ngs.noaa.
24 gov/storms/harvey/index.html#10/
25 29.6797/-95.4540

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1 2036-30 1639 Images from DOJ Initial Disclosures


2 (1-30-2018), https://storms.ngs.noaa.
3 gov/storms/harvey/index.html#10/
4 29.6797/-95.4540
5 2176 1468 9/2/2017 Richard Long video - The
6 Army Corps of Engineers Explains that
7 Canyon Gate is Designed to Flood
8 2188 1587 48201C0610M.pdf
9
10 DX PAGE DESCRIPTION
11 196 1542 06/01/2009 Presentation on Addicks
12 Reservoir Information Meeting June,
13 2009
14 198 1548 06/09/2009 Barker Reservoir
15 Information Meeting June, 2009
16 206 1484 09/30/2009 USACE - Addicks & Barker
17 Reservoirs Multi-Agency Table Top
18 Exercise; (09/30/2009); Full
19 Document, with Responses to
20 Participant Feedback Forms, 78 pages
21 238 1559 08/09/2011 Addicks & Barker Dams &
22 Reservoirs Presentation to Katy
23 Sunrise Rotary Club by Richard Long,
24 USACE Houston Project Office
25

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 254 1722 05/01/2013 Appendix 9 of the Corps of


2 Engineers' Dam Safety Modification
3 Report
4 304 1564 06/05/2017 USACE Buffalo Bayou and
5 Tributaries Flood Control Project
6 Past, Present, and Future Slideshow
7 826 1721 Map - Streetmap view of Banker
8 property location
9 830 1685 Map - Streetmap view of Giron
10 property location
11 839 1613 Map - Overhead aerial view of Sidhu,
12 Stewart, and Turney property
13 locations
14 840 1612 Map - Streetmap view of Sidhu,
15 Stewart, and Turney property
16 locations
17 933 1513 05/07/1999 letter to Mr. Long from
18 Mr. Kirkpatrick
19
20 STEWART PAGE DESCRIPTION
21 4 1584 08/01/76 Survey Map of Bear Creek
22 Village
23 5 1583 6/24/1983 Deed of Trust to Secure
24 Assumption
25

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 7 1598 8/30/2017 Photos of Stewart home


2 during Harvey inundation
3 9 1596 8/29/2017 Videos of people being
4 rescued; videos of water coming up
5 driveway; video of the Stewarts
6 evacuation and drop-off
7 25 1590 Photograph
8 26 1592 Photograph
9 27 1595 Photograph
10 29 1601 Photograph
11 30 1603 Photograph
12 32 1607 Photograph
13
14 WIND PAGE DESCRIPTION
15 21-3903 1632 Videos
16 21-3904 1638 Videos
17 21-3908 1640 Videos
18
19 GIRON PAGE DESCRIPTION
20 4 1652 Google Earth Image of Neighborhood
21 6 1659 10/15/05 Seller's Disclosure Notice
22 7 1661 10/26/05 Survey Map and Settlement
23 Statement
24 26 1677 Native Photos of Water Rising and
25 Destroyed Home

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 40 1667 South Mason Road south of Barker


2 Dam's auxiliary spillways
3 (Demonstrative)
4 81 1673 Photograph
5 82 1673 Photograph
6 83 1673 Photograph
7
8 BANKER PAGE DESCRIPTION
9 18 1708 08/29/17 Social Media Production
10 24A 1713 Photograph
11 24B 1714 Photograph
12 24C 1715 Photograph
13 24D 1715 Photograph
14 24E 1716 Photograph
15 24F 1716 Photograph
16
17 SIDHU PAGE DESCRIPTION
18 28 1741 9/1/2017 Photograph of property
19 51 1744 Termination of Lease_AC-603_Donna
20 Clark_09-2017.pdf
21 52 1742 10/9/2017 Photograph of property
22 53 1742 10/9/2017 Photograph of property
23
24
25

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Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/13/2019

1 BURNHAM PAGE DESCRIPTION


2 9 1771 12/31/14 HAR MLS Sale December 31,
3 2014 Listing Detail
4 19 1770 8/17/2017 Weird Homes Tour Agreement
5 20 1782 1/22/2018 Amendment to Contract for
6 sale of home
7 54A 1773 Native Photo of Damaged Home HWMs
8 54B 1787 Native Photo of Damaged Home HWMs
9 54C 1787 Native Photo of Damaged Home HWMs
10 54D 1787 Native Photo of Damaged Home HWMs
11 54E 1787 Native Photo of Damaged Home HWMs
12 54F 1787 Native Photo of Damaged Home HWMs
13 54G 1787 Native Photo of Damaged Home HWMs
14 54H 1787 Native Photo of Damaged Home HWMs
15 54I 1787 Native Photo of Damaged Home HWMs
16 54J 1787 Native Photo of Damaged Home HWMs
17 54K 1787 Native Photo of Damaged Home HWMs
18 54L 1787 Native Photo of Damaged Home HWMs
19 54M 1787 Native Photo of Damaged Home HWMs
20 54N 1787 Native Photo of Damaged Home HWMs
21 54O 1787 Native Photo of Damaged Home HWMs
22
23
24
25

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