Case updates

Upstream Liability Trial Concludes

The trial on the Government’s liability for 13 test properties was held from May 6 to May 17 in Houston. The Plaintiffs called 27 witnesses, and the Government called 11 additional witnesses. 

First, each of the thirteen test property plaintiffs who were chosen to represent a sampling of upstream flooded properties did an outstanding job on the witness stand. They described their harm, damage, and injuries suffered during Harvey. They also testified about the lack of information regarding flood risk from a Government-operated dam and the two reservoir flood pools. The Court heard the test plaintiffs’ various stories about dislocation, loss of savings, and other hardships of home repair in the various upstream communities – Lakes on Eldridge, Twin Lakes, Bear Creek, South Mayde Creek, Kelliwood, Canyon Gate, Cinco Ranch, just to name some of the neighborhoods. Their testimony was both compelling, and moving, and we thank each and every test property plaintiff for appearing in court. 

The Court was able to put this testimony in context by the site visit organized on May 8th. It was a seven-hour tour organized by Plaintiffs’ counsel, and the judge asked many thoughtful questions of the Army Corps representative and the homeowners whose properties he visited.

Overall, we feel good about the testimony, the evidence, and the arguments developed during trial.

There were many highlights during trial. For example, one of the Government’s expert witnesses who planned to testify on the “flood-proneness” of the test property homes was stricken by the Court. Lead counsel Daniel Charest successfully argued to the Court that the expert witness had not developed a reliable methodology and was largely speculating based only on his own subjective beliefs. Another highlight was the Government’s decision not to even call several other government experts that were designated to testify about the severity of impacts to home prices, or about alleged reoccurrence intervals for a storm like Harvey.

Other witnesses from the Army Corps admitted that the Addicks and Barker dams were designed to impound stormwater from large storms like Harvey. They also admitted that the Corps hired a company to survey the first-floor elevation of thousands of upstream homes in the Addicks and Barker watersheds for the sole purpose of understanding exactly which homes would flood depending upon the amount of water impounded by the dams. That is, in 2004, the Government knew exactly which homes would flood when the impounded pool reached any particular elevation. But homeowners were never told this. 

A clear picture emerged during trial that the Addicks and Barker dams functioned as intended during Harvey, which we think strengthens the Fifth Amendment “takings” claim.

As we have explained in other emails, the objective for this trial is to prove that the Government’s actions in designing, building, and operating the Addicks and Barkers dams caused the flooding of your private properties behind those dams, and that the Government is therefore liable for just compensation to you as a result. This portion of the trial was not about the amount of your damages, however, just about the Government’s liability.

Now that the liability trial is over, we have a closing brief due to the Court in late June. The Government’s brief is due in August. And we will have oral arguments before Judge Lettow in Washington D.C. in September. 

Finally, as we have explained, our plan for this case is to move for “class action” treatment of the liability finding. A “class action” is a procedural mechanism to organize individual plaintiffs that have important features in common—in this case, everyone upstream of the Addicks and Barker dams flooded for the same reason. That is the common feature here. If we can prove that the thirteen test properties flooded due to the Government’s design, construction and operation of the Addicks and Barker dams, then it should not be necessary for every one of the thousands of other property owners (or renters) to have to go through their own trials on the same issues. This is the purpose of a “class”. Individual property owners have the option to “opt-in” to the class so that they do not have to go through their own trials on liability. Everyone who opts-in can then proceed straight to damages. We believe it is the most efficient way to run a case of this size.

After the liability phase, we will focus on obtaining a ruling on class treatment, and set up a process for individual damages. Different properties will have different damages. So, with the Court’s oversight, we will undertake the task of figuring out how to set up the damages phase of the case.

Reminder: Not too late to join!

We continue to get new clients day after day. And a lot of people ask whether it is too late to join the litigation. If you haven’t signed up so far, you are not too late. We would be happy to help. And we are positioned to provide the representation needed to protect the interests of all upstream flood victims. 

As always, we have set up different places to get information and/or send us questions. Please feel free to access these resources and/or pass them (or even this email) along to your neighbors. Getting the word out about the case and our meetings will be a big help to us and the affected upstream flood victims. 

Phone: 713.533.1704, or 888-248-5215

email: or



Charles Irvine, Irvine & Conner PLLC
Daniel Charest, Burns Charest LLP
Larry Vincent, Burns Charest LLP

Co-Lead Counsel for Upstream Harvey Flood Cases