Class-Action Suit: Monday 6/24

Both the plaintiffs and the defendants have rested their cases.  The judge discussed his plans for the instructions to the jury with the counsels for both parties. There is to be no consideration of the monetary damages that might be due the plaintiffs.  This trial is structured in two parts.  The first part is to determine liability: is Reno responsible for the harm caused by the flooding.  The second part is to determine a monetary award if Reno is found liable in the first part.  If Reno is not found liable in the first part, there will be no second part.  So, the jury is instructed to disregard the issue of monetary damages.  If that trial is called, there will be a new jury.

Roger and Shipman debate the definition of “inverse condemnation” regarding the residents loss of use of their properties.  Shipman argued that this only applied to repeated occurrences and inevitable recurrence to constitute a “taking”.  Roger prevailed on this point.

This session was for the plaintiffs’ rebuttal to the case made by the defense.  The judge pointed out that this was not a time to introduce new information or to revisit points already made.  Roger asserted that Shipman lied about hiring a specialist to make an assessment of the losses and damages to the plaintiffs properties.  Shipman had claimed that the defense hadn’t while Roger had proof to the contrary.  Shipman claimed that the plaintiffs class was not valid since only a few class members had testified.  Roger asserted that the class could be represented by a few plaintiffs exactly as done.

The jury was called in.  Kerry called Linda Walls to the stand and asked her about the state of the flooding when her home was only protected by sandbags.  This was before the Hesco barrier perimeter was completed.  She showed the high-water mark in her carport and the algae bloom in the water.  McKean handled the cross examination.  The Walls moved out in February of 2017 and can’t move back because their septic system is still submerged.  Busby called Jay Rosenthal to the stand.  He is a meteorologist hired by the plaintiffs to review McMahon’s report on precipitation.  Rosenthal asserted that the winter of 2017 was not a once-in-a-lifetime event: it followed a pattern of a heavy winter every 10-15 years.  In fact, it looks like the 2017 winter was the fourth largest for precipitation.  McMahon claimed that the 2017 winter was the worst ever and didn’t consider evidence that it wasn’t.  He used specific dates to make the data look more dramatic rather than considering the characteristics over the entire “water year” (October to June).  McMahon’s use of radar to determine precipitation volume has limited accuracy which was not discussed.  Clouds can have levels with different characteristics, so the radar data can depend on what altitude is being sensed.  McMahon’s use of the Big Meadow rain gauge to estimate the rain on Peavine Mountain was probably not representative.  Rosenthal thought little of the runoff into Swan Lake came from Peavine Mountain.  McMahon used averages for all his conclusions while Rosenthal analyzed  individual storm events.  Sendall handled the cross-examination.  She asked about using NCET weather data.  Both McMahon and Rosenthal used the NCET as an element in their analyses.  Rosenthal claimed that NCET provides accurate data for Reno but the accuracy may not extend to Lemmon Valley.  Sendall introduces the letter written by Governor Sandoval in 2017 requesting assistance from FEMA citing “record breaking rainfall”.  This was objected to given that Sandoval is not a weather expert.  There was some discussion of Rosenthal being retained by the plaintiffs.   Rosenthal asserted that the NCET data was the “best there is” but that it still had its limitations.  For a specific watershed, a scientist should review multiple sources of information to get the best understanding.

Roger called David Thompson back to the stand.  Thompson disagrees with Forest’s hydrological model.  Thompson’s mass-balance calculations cover the entire water year, not just portions of it.  The effect of evaporation is included in the lake level changes as is infiltration.  He thinks there’s very little infiltration under Swan Lake.  Forest didn’t consider runoff before January 1, 2017.  He also used NDEP flow rates for RSWRF when that data is known to be too low.  Thompson used daily rainfall data rather than averaging as Forest did.  The undisturbed surfaces only allow 3-10% runoff contrary to Forest’s claim.  Thompson identified areas where his analysis diverged from Forest’s.

  1. Forest used lower numbers for the effluent flow from RSWRF.
  2. Forest assumed higher runoff from pervious (undisturbed) areas.
  3. Forest assumed that areas with mitigation had no runoff at all.

Shipman handled the cross examination.  He pointed out that RSWRF has been discharging into Swan Lake since the 70’s.  He displayed a graph that was a variant of a Thompson graph, but Thompson didn’t make it and Shipman couldn’t defend it.  It was practically laughed out of court.  On re-direct, Roger asked “Does most run off from development end up in storm sewers?”  The answer was “yes”.

Kerry re-called Donna Robinson to the stand.  She pointed out a couple of erroneous statements by the defense.  Forest and Shipman had asserted that her property had flooded three times when it had only flooded twice.  On re-cross, McKean asked about the timeline for the flooding.  They discussed the 311 number set up for emergencies.

Up next …

Tuesday there will be last minute negotiations including the judge and the lawyers from both sides.

Wednesday the case will go to the jury.  The judge expects them to reach a verdict on Wednesday.

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