2019-05-10 Harvey - TT Day 5 (Kappel, Popovici, Buchanan, Micu, Bell, Strebel) - FULL

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 Friday, May 10, 2019
15 8:59 a.m.
16 Trial Volume 5
17
18
19 BEFORE: THE HONORABLE CHARLES F. LETTOW
20
21
22
23
24
25 DAVID M. LEE, RMR, CCR
1120
Trial
Upstream Addicks and Barker (Texas) Flood-Control Reservoirs 5/10/2019
1 APPEARANCES:
2 ON BEHALF OF THE PLAINTIFFS (IN RE UPSTREAM ADDICKS
3 AND BARKER (TEXAS) FLOOD-CONTROL RESERVOIRS:
4 BURNS CHAREST, L.L.P.
5 BY: DANIEL H. 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
16 (713) 533-1704
17 charles@irvineconner.com
18
19 WILLIAMS, KHERKHER, HART, BOUNDAS, L.L.P.
20 BY: EDWIN A. EASTERBY, ESQ.
21 8441 Gulf Freeway
22 Suite 600
24 (713) 230-2200
25 aeasterby@williamskherkher.com
For The Record, Inc.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1121
Trial
1 APPEARANCES CONTINUED:
2 DUNBAR HARDER, P.L.L.C.
3 BY: LAWRENCE G. DUNBAR, ESQ.
4 10590 West Office Drive
5 Suite 2000
7 (713) 782-4646
8
9 VB ATTORNEYS
10 BY: VUK VUJASINOVIC, ESQ.
11 6363 Woodway Drive
12 Suite 400
14 (713) 224-7800
15 vuk@vbattorneys.co
16
17 AHMAD ZAVITSANOS, ET AL.
18 BY: KYRIL V. TALANOV, ESQ.
19 HILARY S. GREENE, ESQ.
20 1221 McKinney Street
21 Suite 2500
23 (713) 655-1101
24 hgreene@azalaw.com
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1122
Trial
2 McGEHEE, CHANG, BARNES, LANDGRAF
3 BY: JACK E. McGEHEE, ESQ.
4 10370 Richmond Avenue
5 Suite 1300
7 (713) 864-4000
8 jmcgehee@lawtx.com
9
10 SULLINS, JOHNSTON, ROHRBACH & MAGERS
11 BY: MICHAEL J. DULANEY, ESQ.
12 2200 Phoenix Tower
13 3200 Southwest Freeway
15 (713) 521-0221
16
17 ON BEHALF OF THE DEFENDANT:
18 UNITED STATES DEPARTMENT OF JUSTICE
19 ENVIRONMENT & NATURAL RESOURCE DIVISION
20 BY: WILLIAM SHAPIRO, ESQ.
21 501 I Street
22 Suite 9-700
23 Sacramento, California 95814
24 (916) 930-2207
25 william.shapiro@usdoj.gov

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1123
Trial
4 BY: KRISTINE S. TARDIFF, ESQ.
5 53 Pleasant Street
6 Fourth Floor
7 Concord, New Hampshire 03301
8 (603) 230-2583
9 kristine.tardiff@usdoj.gov
10
13 BY: LAURA DUNCAN, ESQ.
14 MAYTE SANTACRUZ, ESQ.
15 601 D Street, N.W.
16 Third Floor
17 Post Office Box 7611
18 Washington, D.C. 20044
19 (202) 305-0466
20 (202) 305-0506 (Facsimile)
21 laura.duncan@usdoj.gov
22 mayte.santacruz@usdoj.gov
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1124
Trial
2 UNITED STATES ARMY CORPS OF ENGINEERS
3 GALVESTON DISTRICT, OFFICE OF COUNSEL
4 BY: JAMES E. PURCELL, ESQ.
5 2000 Fort Point Road
6 Suite 369
7 Galveston, Texas 77550-1229
8 (409) 766-3822
9 james.e.purcell@usace.army.mil
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1125
Trial
1 I N D E X
2
3 Witness: Direct: Cross: Redir: Recross: Vr Dire:
4 Kappel 1130 1177 1204 1207
5 Popovici 1216 1247
6 Buchanan 1254 1281
7 Micu 1286 1309 1321
8 Bell 1329/1352 1365 1376 1342
9 Strebel 1381 1415 1418
10
11 E X H I B I T S
12 Number: Marked: Admitted:
13 Joint:
14 65 1248
15 107 1288
16 109 1312
17 240 1250
18 257 1384
19 262 1222
20 291 1387
21
22 Plaintiffs’:
23 PDX3 1214
24 160 1258
25 163 1269

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1126
Trial
1 E X H I B I T S (Continued)
3 Plaintiffs’:
4 164 1276
5 168 1279
6 366 1377
7 2036-12 1291
8 2036-13 1291
9 2036-18 1221
10 2036-19 1223
11 2293 1198
12 2294 1198
13 2295 1198
14
15 Defendant’s:
16 520 1320
17 601 1215
18 (page 36, pages 38-222)
19 833 1385
20 834 1416
21 837 1247
22 838 1248
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1127
Trial
3 Popovici:
4 5 1239
5 25 1233
6 33 1246
7 52 1234
8
9 Micu:
10 10 1324
11 17 1301
12 (Bates Micu000292)
13 17 1302
15 32 1298
16 33 1298
17 35 1299
18 55 1304
19 56 1305
20 58 1303
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1128
Trial
3 LOE:
4 7 1415
5 13 1395
6 17 1404
7
8 Strebel:
9 1 1406
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1129
Trial
1 Houston, Texas
2 May 10, 2019
3 8:59 a.m.
4
5 P R O C E E D I N G S
6 IN OPEN COURT:
7 THE COURT: Please be seated.
8 Good morning.
9 We're back in session for the concluding
10 day of this week.
11 Mr. Charest, where do we go from here?
12 MR. CHAREST: DOJ is going to call a witness
13 out of order, so this is a witness, Mr. Kappel, that
14 is going to be in their case-in-chief, as it were,
15 but for scheduling reasons, he comes first for that
16 reason.
17 THE COURT: Mr. Shapiro?
18 MR. SHAPIRO: Yes, your Honor.
19 I'll defer to Ms. Held.
20 MS. HELD: Good morning, your Honor.
21 My name is Jessica Held. And I'll be
22 the United States --
23 THE COURT: What is your last name? How do
24 you spell it?
25 MS. HELD: Held, H-e-l-d, and I'll be

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1130
Trial
1 handling the direct of Mr. Kappel.

2 THE COURT: Mr. Kappel, would you come
3 forward to be sworn as a witness.
4 Mr. Kappel, if you stop right there.
5 Raise your hand to be sworn.
6 Mr. Kappel, do you swear or affirm that
7 the testimony you give at this trial shall be the
8 truth, the whole truth, and nothing but the truth so
9 help you God?
10 THE WITNESS: Yes.
11 THE COURT: Please be seated on the witness
12 stand.
13 Once you're there, could you give your
14 full name, please.
15 THE WITNESS: My name is William Kappel.
16 THE COURT: How do you spelled Kappel?
17 THE WITNESS: Kappel is K-a-p-p-e-l.
18 THE COURT: Thank you.
19 Ms. Held, you may proceed.
20 MS. HELD: Thank you, your Honor.
21 WILLIAM KAPPEL
22 called as a witness herein, having been first duly
23 sworn, was examined and testified as follows:
24 DIRECT EXAMINATION
25 BY MS. HELD:

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1131
Trial
1 Q. Mr. Kappel, what is your profession?

2 A. I am a meteorologist.
3 Q. How did you get involved in this case?
4 A. I got in involved in the case by the request
5 of Dr. Barry Keim to provide the report of rainfall
6 analysis of the Hurricane Harvey rainfall and the
7 rarity of the event.
8 Q. And did you write a report showing your
9 opinions?
10 A. Yes, I did.
11 MS. HELD: I would now like to direct your
12 attention to Defendants' -- what has been marked as
13 DX601.
14 THE COURT: Ms. Held, if you would give us
15 just a minute, I would like to physically, at the
16 bench, receive a copy of Mr. Kappel's report.
17 MS. HELD: Yes, your Honor.
18 THE COURT: Okay. Yes.
19 Q. BY MS. HELD: Mr. Kappel, do you recognize
20 this document?
21 A. I do.
22 Q. And where is your report located in this
23 document?
24 A. Our report is located as a series of
25 appendices after the first main report from Dr. Keim.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1132
Trial
1 Q. Could you please give the page number of this

2 document, for the record, where your report begins?
3 It's the number that begins DX601.
4 A. Our document begins on DX601_038.
5 Q. And how does your report relate to the
6 beginning of document DX601?
7 A. The first part of the document is Dr. Barry
8 Keim's report, and then ours follows a series of
9 appendices to that report.
10 Q. Can you please describe your educational
11 background to the Court?
12 A. Yes.
13 I have an associate in arts degree from
14 Skagit Valley College in physical science, a bachelor
15 of science degree in physical science, with an
16 emphasis on geology from Colorado Mesa University,
17 and a broadcast meteorology degree from Mississippi
18 State University.
19 Q. And could you describe the broadcast
20 meteorology degree, please?
21 A. Yes, the broadcast meteorology degree is a
22 degree program, a four-year degree program that
23 provides similar academic background as the standard
24 bachelor of science meteorological degree, except the
25 emphasis is on operational forecasting and rainfall

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1133
Trial
1 reconstruction to provide media information on

2 television broadcasting shows.
3 Q. And have you taught any courses on
4 meteorology?
5 A. Yes, I have. I have taught weather and
6 climate courses at the University of Colorado at
7 Colorado Springs, and provided numerous webinars and
8 scientific presentations on rainfall reconstruction
9 and meteorological analyses.
10 Q. And have you written any peer-reviewed
11 publications?
12 A. I have written in numerous peer reviewed
13 publications. Some of the most recent ones include a
14 paper published on Hurricane Harvey rainfall in the
15 Journal of Dam Safety, and a peer-reviewed
16 publication on the May 2010 Extreme Rainfall in the
17 Nashville, Tennessee Region.
18 Q. And how do these peer-reviewed publications
19 relate to the questions that you were asked to answer
20 in this case?
21 A. They directly relate to this case in that
22 they are analyses of extreme rainfall events,
23 recharacterizing the rainfall accumulation in time,
24 space and magnitude, and also characterizing the
25 rarity of the rainfall event across a given region.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1134
Trial
1 Q. Now Mr. Kappel, what is your current

2 position?
3 A. I'm currently chief meteorologist and
4 President of Applied Weather Associates.
5 Q. And how long have you been with Applied
6 Weather Associates?
7 A. I started with Applied Weather Associates in
8 2004.
9 Q. And what do you do at Applied Weather
10 Associates?
11 A. Our main line of work at Applied Weather
12 Associates is rainfall reconstruction analyses for
13 the use in probable maximum precipitation
14 development, and to provide input to hydrologists of
15 rainfall accumulation in time, space and magnitude
16 for hydrologic modeling purposes.
17 Q. And while you've been at Applied Weather
18 Associates, about how many other projects have you
19 worked on where you've been asked to characterize the
20 magnitude of a storm over space and time like you
21 were asked to do here?
22 A. We are currently on storm number 724. We've
23 been analyzing rainfall analysis -- reconstruction of
24 rainfall accumulation in time, space and magnitude.
25 Q. And about how many other projects have you

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1135
Trial
1 worked on where you've been asked to calculate rarity

2 of storms, like you were asked to do here?
3 A. Over 100 projects. We are around 120
4 currently, with several in progress, where we've
5 calculated the rarity of rainfall, utilized the
6 reconstructive rainfall analysis to add input for dam
7 design, critical infrastructure design, and probable
8 maximum precipitation development.
9 Q. And would you please describe to the Court
10 your experience providing expert testimony?
11 A. Yes, I have provided expert testimony in
12 several cases -- or in a case in Colorado in 2016,
13 and our rainfall reconstruction data have been used
14 as a support of expert testimony in several cases in
15 Georgia, Washington, Colorado, South Carolina.
16 Q. And have you been found unqualified to
17 testify?
18 A. No, I haven't.
19 Q. Where in your report can we find information
20 on your education, background and experience?
21 A. That is located at the end of Appendix A,
22 which should start on Section 3 of Appendix A. I'm
23 trying to get there.
24 Q. May I turn your attention to page 217?
25 A. There you go.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1136
Trial
1 Q. And what document is located there?

2 A. Yes, page DX601217.
3 Q. Yes. And what document is located there?
4 A. That document is my resume and curriculum
5 vitae, which records several reports published in the
6 last 10 years.
7 Q. All right. Mr. Kappel, now I'd like to turn
8 to the specific questions that you were asked to
9 answer in your report, and go through the data and
10 the methodology that you used to answer them, but not
11 the actual opinions that you came to yourself.
12 All right. So first let's look at
13 question 1, which is analyzing the magnitude of a
14 storm over space and time. What's -- let's discuss
15 the steps that meteorologists in general take to
16 analyze the magnitude of a storm. What's the first
17 step that they would take?
18 A. The first step would be to define the area of
19 interest and the time frame that needs to be
20 analyzed, and that is generally provided by the
21 hydrologist that you're working with.
22 Q. And how do meteorologists work with
23 hydrologists?
24 A. We would provide rainfall input that they
25 would utilize in their modeling analysis, and usually

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1137
Trial
1 a meteorologist would provide rainfall in time, space

2 and magnitude.
3 Q. And in this case, how did you determine the
4 area of interest?
5 A. We looked at the rainfall information that
6 was publicly available. You analyze and look at a
7 high level of radar rainfall accumulation, media
8 reports, and so on, in conjunction with the area of
9 interest that is provided by the hydrologists for
10 their needs as well, for their needs for modeling.
11 Q. And I'd like us to look at page 47 of
12 Mr. Kappel's report.
13 What does this figure show us,
14 Mr. Kappel?
15 A. Yes. This figure shows two things here: The
16 overall area of interest to analyze the entire
17 Hurricane Harvey event is outlined in purple, the
18 purple square. Then within that larger overall
19 domain is an area outlined in red, which is the basis
20 of interest that was supplied by the DOJ hydrologist
21 as the modeling domain they needed the rainfall for,
22 and within that area of red are the three sub basins,
23 Addicks watershed, Barker watershed, and Buffalo
24 Bayou watershed that we needed information to do as
25 well.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1138
Trial
1 Q. All right. So after a meteorologist

2 determines what the area of concern is, what's the
3 next step?
4 A. The next step for a meteorologist would be to
5 gather all relevant data, be it rain gauge
6 observational data, any other rain gauge accumulation
7 information, and radar rainfall accumulation
8 information, if available.
9 Q. Could you briefly describe what rain gauge
10 data entails?
11 A. Yeah, rain gauge data entails your standard
12 rain gauge catch information from either such
13 receptacles as an 8-inch tipping bucket, a standard
14 backyard 4-inch rain gauge, any other type of
15 receptacle that can generate the accumulation and
16 volume of rainfall in time and space, and then also,
17 in the radar information, if there is radar coverage
18 over your domain of interest, you gather all that
19 information and put it together for one complete
20 picture.
21 Q. And what organizations maintain rain gauges?
22 A. There are many, many organizations. They
23 range from the National Weather Service and the
24 National Weather Service's co-op program to locate
25 rain gauge networks, such as the Harris County Flood

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1139
Trial
1 Control District, citizens observational networks

2 such as COCORAHS, C-O-C-O-R-A-H-S. Other scientific
3 networks such as USGS, remote automated weather
4 stations and so on. There is literally thousands and
5 thousands of rain gauges and networks.
6 Q. And what kind of variety can a meteorologist
7 expect to see in the quality of the data obtained
8 from various rain gauges?
9 A. There is a wide variety in quality and
10 accuracy of rain gauge collection. In general, the
11 National Weather Services ASAS (phonetic) and co-op
12 stations are of the highest quality, and they are
13 continually calibrated, validated and corrected.
14 Gauges like the Harris County Flood
15 Control District do a very good job, and have the
16 highest quality gauge.
17 Networks like the Harris County Flood
18 Control District have high quality data, and then it
19 ranges from there to a person's private backyard rain
20 gauge, which may not be -- it may be used
21 incorrectly, and so on.
22 Q. How do meteorologists ensure the quality of
23 their data from these sources?
24 A. A meteorologist would do several different
25 types of Q, or quality control, quality assurance to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1140
Trial
1 make sure that the rain gauge data are acceptable and
2 usable. These would include things like a spatial
3 check; in other words, checking the rain gauge
4 accumulation at one gauge versus surrounding gauges,
5 a timing check which would correct for differences in
6 timing of accumulation against surrounding gauges, an
7 intensity check, which checks for the rainfall rate
8 of accumulation. Other known data issues and
9 discrepancies such as citing characteristics can be
10 investigated and so on. So there were numerous
11 checks there, again.
12 Q. So what kind of rain gauge sources did you
13 rely on yourself to answer question 1?
14 A. Yes, we relied on several rain gauge sources.
15 They are listed in our report I believe in section
16 4.1.
17 Q. I'm going to stop you right there.
18 Could we bring up 48 please.
19 And what's described here in the table?
20 A. Yes, table 2 on page 48 lists the number of
21 stations that were used in our overall Hurricane
22 Harvey rainfall analysis. There were 1302 stations
23 used in total, 444 hourly gauges, 431 daily gauges,
24 and 351 supplemental gauges. And then there were a
25 few gauges that are adjusted and added for spatial

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1141
Trial
1 fit, which are numbered there, 74 of those, and then

2 two hourly pseudo gauges.
3 Q. And Mr. Kappel, what can you tell us about
4 the reliability of the data from looking at this
5 table?
6 A. Well, of the 724 extreme rainfall events that
7 we've analyzed in the last 20 years, this is one of
8 the highest quality analyses that we've ever done
9 because of the number of gauges used over the domain,
10 and the number of high quality gauge information such
11 as from the National Weather Service first order
12 rainfall observational network. So we have very,
13 very high quality of data and coverage.
14 Q. And how does this then compare with the type
15 of data meteorologists often have available when
16 analyzing storm magnitude?
17 A. Yeah, this far exceeds many of the storm
18 analysis data sets that we have available. Many
19 storm events might only have a hundred or less rain
20 gauges over a similar area of size and duration. In
21 this case, we have order of magnitude more gauges,
22 and also we have excellent radar coverage to
23 compliment those ground observations.
24 Q. Now you also mentioned that you utilized
25 radar data. Can you explain that?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1142
Trial
1 A. Absolutely.
2 So radar data provides an analysis of
3 rainfall accumulation in a spatial component that
4 rain gauges cannot capture. Rain gauges only record
5 the rainfall as a discrete point on the ground, while
6 the radar sees the whole atmosphere over a wide
7 domain. The radar calculates the amount of
8 reflectivity that's sent back to the radar every time
9 it sends out a signal and bounces off a raindrop or
10 snowflake in the atmosphere. That strength of that
11 signal is then converted into what are called DBZs,
12 and those are converted into a rainfall rate
13 accumulation at a given point.
14 So when you have radar coverage, you
15 have excellent spatial representation of the rainfall
16 accumulation in time, and the rain gauges give you
17 ground truth, and you marry up those two pieces of
18 data to come up with the most complete picture of
19 rainfall accumulation in time, space and magnitude.
20 Q. Now, how did the radar data that you utilized
21 here compare to the radar data you typically utilize
22 by meteorologists in this type of analysis?
23 A. The radar data for this storm analysis was of
24 the highest quality. There were no beam blockage
25 issues, which is where the radar signal can be

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1143
Trial
1 blocked by a mountain or other obstacles. There was

2 no missing time frames in the overall time analyzed.
3 There was no issues with attenuation or ground
4 clutter that caused anomalous returns. So we had
5 perfect radar coverage from four different radar
6 sites overlapping the overall domain.
7 Q. Thank you.
8 So now that we've discussed the data
9 that you used to answer question 1, which was the
10 magnitude of Hurricane Harvey, I would now like you
11 to discuss the method that you used, not the opinions
12 that -- not the opinions themselves, but merely the
13 method.
14 I'm going to show you a diagram from
15 your report? Could you please pull up page 45?
16 A. (Witness complies.)
17 Q. And what are we looking at here, Mr. Kappel?
18 A. This diagram represents the flowchart that we
19 utilized in our storm precipitation analysis system,
20 the acronym is SPAS. This is what's been used to
21 analyze those 724 rainfall events.
22 Q. And how does the SPAS methodology compare to
23 what meteorologists typically do?
24 A. This is a standard process that most
25 meteorologists would utilize to analyze rainfall and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1144
Trial
1 is built off of and structured on the process

2 delineated by the National Weather Service, and the
3 rural meteorological organization manual for PMP of
4 how to analyze rainfall and develop depth, area,
5 duration information, which is the three dimensional
6 characterization of rainfall in time, space, and
7 magnitude.
8 Q. Now will you please briefly provide an
9 overview of how the SPAS method works?
10 A. Yes.
11 As I mentioned earlier, a meteorologist
12 would follow two standard protocol to analyze
13 rainfall. We gather rain gauge information, and
14 gather radar information, and put them together to
15 come up with a complete picture. This flowchart
16 follows that process.
17 On the start, the first two lines show
18 the gathering of all available rain gauge
19 observational data. As you flow down the middle of
20 the chart, those rain gauge observational data are
21 quality controlled and grouped together so that you
22 have hourly, daily, and supplemental, and as you go
23 to the middle of the chart, all of the rain gauge
24 data are then being time corrected so that they all
25 become hourly rain gauge observational data.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1145
Trial
1 On the right side of the chart is the

2 radar information. Information over there states
3 that you're pulling in 5-minute radar scan data.
4 That information is totaled up to an hourly basis, so
5 every hour as a series of 5-minute radar scans
6 accumulated to an hourly depth.
7 That information then is pulled in with
8 a rain gauge observation data, which is considered
9 ground truth, and corrected so that the radar
10 observations, which have great information on spatial
11 coverage, but often have large errors in total
12 accumulation amounts, are corrected to the ground
13 truth radar -- rain gauge observation data and
14 adjusted. That adjustment then is redistributed
15 throughout the whole domain, which are the bottom
16 steps of this chart, and then the standard output
17 from the SPAS process are derived.
18 Q. And Mr. Kappel, did you use the SPAS
19 methodology here?
20 A. We did.
21 Q. And how did your use of the SPAS methodology
22 here compare to your use of it in other projects?
23 A. The methodology was exactly the same as other
24 projects.
25 Q. And would you please explain how accepted the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1146
Trial
1 SPAS methodology is in the field of meteorology?

2 A. Yes.
3 The SPAS program has been accepted by
4 all federal and state dam safety and precipitation
5 regulators. In this case, the Federal Energy
6 Regulatory Commission, which it regulates all
7 hydropower production in the United States. The
8 Nuclear Regulatory Commission. The United States
9 Army Corps of Engineers, the United States Bureau of
10 Reclamation, the Natural Resource Conservation
11 Service, NRCS, and several state dam safety offices.
12 All of these have independently peer-reviewed the
13 SPAS process, accepted the results for input in
14 critical and high hazard design products, and utilize
15 the information as direct input for hydrologic
16 modeling analysis.
17 Q. How about courts, have the courts accepted
18 the SPAS methodology?
19 A. Yes, it has been accepted in a court of law
20 in Colorado, and used as input for several hydrologic
21 modeling analyses cases throughout the country.
22 Q. Now without discussing your results, what
23 confidence do you have in them for question 1 about
24 the magnitude of the storm?
25 A. Again, given the fact that we have excellent

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1147
Trial
1 rain gauge data and excellent radar coverage, the

2 results are as highest quality as possible.
3 MS. HELD: Your Honor, may I approach the
4 witness to hand him a pointer that he may need in the
5 future.
6 THE COURT: Yes.
7 THE WITNESS: Thank you.
8 Q. BY MS. HELD: All right. So we've gone
9 through the data and methodology for question 1, the
10 magnitude of the storm.
11 Let's now go to question 2, which is the
12 analysis of the rarity of Hurricane Harvey, and I
13 want to do the same thing. Talk about the data that
14 you used, and then the methodology, but not the
15 actual opinions themselves.
16 So let's go step by step through the
17 process that meteorologists use to create rarity
18 determinations or what's the term of art that's used
19 for that?
20 A. The term of art is known as annual exceedance
21 probability, or the percent chance in any given year
22 that that amount of rainfall would occur at a given
23 location.
24 Q. So what's the first step?
25 A. Similar to the analysis of the rainfall

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1148
Trial
1 accumulation, the first step is to define your area

2 of interest.
3 Q. And how does that compare to what you
4 discussed with regard to question one?
5 A. It is the same area of interest delineated in
6 the red outlined hydrologic basin provided by the DOJ
7 hydrologists.
8 Q. And what's the next step then?
9 A. Once your area of interest is defined, you
10 then gather all rain gauge data that are available in
11 that area of interest, and that have an appropriate
12 period of record that are utilized to provide robust
13 statistical analysis, and that are of high enough
14 quality that the rain gauge observations can be
15 utilized.
16 Q. And how does that identification of stations
17 for question 2 compare to what you did in question 1?
18 A. It is the same.
19 Q. And what's now the third step?
20 A. This third step a meteorologist would perform
21 would be once the rain gauge data are identified and
22 gathered, would be to perform what's called an annual
23 maximum series evaluation of those data to derive the
24 greatest amount of rainfall that occurred each
25 calendar year at each station.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1149
Trial
1 Q. So for this third step, how is the number of

2 stations compared to the number of stations you used
3 for the third step in question 1?
4 A. Yes, so the number of stations that were
5 utilized for that identified area of interest for the
6 annual exceedance probability analysis was 24, and
7 that's because it's honed in on a specific region and
8 we needed stations with a long period of record and
9 of the highest quality data.
10 Q. And how does the number of stations that you
11 used for this analysis compare to what meteorologists
12 could typically find available?
13 A. Again, like the overall analysis, it's where
14 the highest quality stations are and to have 24
15 stations in and around the small area of interest was
16 an excellent set of data that any meteorologist would
17 love to have.
18 Q. All right. So now we've talked about the
19 data for question 2. Let's now get to the
20 methodology.
21 So what's the next step in this process?
22 A. Sure.
23 Once you've gathered all of the
24 appropriate rain gauge data, and analyzed it for the
25 annual maximum series information, the next step is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1150
Trial
1 to determine if all of those individual gauge

2 stations could be used as one data set. The purpose
3 for a meteorologist would be increase the period of
4 record to a length that could provide a statistical
5 fit that can address long or very rare occurrences.
6 So in this case you run a thing called a
7 heterogeneity, h-e-t-e-r-o-g-e-n-e-i-t-y. Say that
8 ten times fast, all right?
9 So a heterogeneity test, and all that's
10 doing is saying do these gauges all fit in the same
11 meteorological setting? Or are they different from a
12 statistical perspective.
13 Q. So after you run the heterogeneity test,
14 what's the next step. I believe this is step 5?
15 A. Yeah. The next step that a meteorologist
16 would follow in annual exceedance probability
17 development is simply then to say which probability
18 distribution best fits the data that I have? So you
19 run what's called a "goodness of fit" test to
20 determine which probability distribution best fits
21 your data set.
22 Q. And after the goodness of fit test is run,
23 what's then the sixth step?
24 A. Well, the sixth step, obviously, once you've
25 identified the best goodness of fit test, is you say

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1151
Trial
1 okay, it's this particular probability distribution,

2 therefore this regional growth curve fits that
3 probability distribution. That regional growth curve
4 is a curve that equates recurrence intervals or the
5 rarity of the rainfall from say one year, out through
6 a million years.
7 Q. So you've created a regional growth curve.
8 Now what's the second step?
9 A. Yeah, the next step is once you've got those
10 statistical parameters defined, then you have to go
11 back to each of the stations you've identified and
12 develop what's called the mean annual maximum value,
13 the MAM, and the mean annual maximum value is just
14 like it's called. It's the mean of all the values of
15 a given station over their entire period of record.
16 Q. And then after that?
17 A. After that you now have a value of a mean
18 annual maximum value at each station, but you don't
19 have information on how that's spatially distributed
20 over a large domain. In this case, the area of
21 interest defined is over 1800 square miles, so we
22 need to know what's happening between each of those
23 gauges. And so a meteorologist, then, would have to
24 have some way to spatially distribute those mean
25 annual maximum values. To do that a meteorologist

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1152
Trial
1 would use a climatological base map.

2 So a climatologist would say average
3 precipitation or average monthly precipitation, that
4 gives you information as to how rainfall would
5 accumulate in that area over time, and how that
6 relates to each of those individual points.
7 A meteorologist would then use that
8 spatial -- or that climatological information to
9 correct for the spatial processes between those known
10 data points, and come up with a spatial feel of mean
11 annual maximum value that can be used over the entire
12 domain.
13 Q. So after you've created this spatial field,
14 what's the next step, step number 9?
15 A. The next step then is to take that spatial
16 field and relate that to the amount of rainfall
17 accumulation at each location in the overall domain
18 for the duration of interest. And I'm sorry, and
19 scale up the regional growth curve.
20 So each point had an initial regional
21 growth curve, now we have a mean annual maximum value
22 at that point. That regional growth curve is scaled
23 by that mean annual maximum value at each point.
24 Q. And after scaling the regional growth curve,
25 what do meteorologists do next?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1153
Trial
1 A. The final step is very simple. Now you take

2 the rainfall accumulation at that point for the
3 duration of interest, let's say 72 hours. You plot
4 that on the graph, and where it intersects on that
5 scale regional growth curve, that becomes your annual
6 exceedance probability, or the rarity of that
7 rainfall accumulation at that point.
8 Q. Now the method that you've just described, is
9 this the standard method that meteorologists use to
10 determine annual exceedance probabilities?
11 A. Yes. This is a standard statistical analysis
12 known as regional L-moments. It's been peer-reviewed
13 and published many times by authors such as Hosking
14 and Wallis, in several scientific reports. It's the
15 standard methodology that is also utilized by the
16 National Weather Service in development of NOAA Atlas
17 14 and similar publications.
18 Q. And so how does the analysis that you did
19 here compare to the standard analysis?
20 A. We followed the exact same statistical
21 analysis process.
22 Q. And if you could look at page 176 of your
23 report, please.
25 Q. And is this the section of your report where

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1154
Trial
1 you explained this methodology?

2 A. Yes, starting in section 1.1. Each of these
3 steps that I have described are the standard steps in
4 statistical analysis, and are described in this
5 process or in this group.
6 Q. Now without telling us your opinions, can you
7 please describe the confidence that you have in your
8 results for question 2?
9 A. We have the highest amount of confidence
10 possible. Again, because we have 24 gauges with
11 complete periods of record all longer than 20 years.
12 The average is 58 years. And they have no missing
13 data and no data quality issues.
14 Q. Thank you, Mr. Kappel.
15 MS. HELD: Your Honor, pursuant to Rule 702,
16 I am offering Mr. Kappel as a qualified expert
17 witness in the field of meteorology, with a specialty
18 in analyzing the magnitude of storms over space and
19 time and in determining annual exceedance
20 probabilities for precipitation events.
21 MR. VUJASINOVIC: No objection.
22 THE COURT: I was going to ask for voir dire
23 from you, Mr. Vujasinovic.
24 MR. VUJASINOVIC: Not necessary, Judge.
25 THE COURT: It's not? You accept the expert

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1155
Trial
1 designation?
2 MR. VUJASINOVIC: Yes, we do.
3 THE COURT: All right. The Court will
4 qualify and accepts Mr. Kappel as qualified in
5 meteorology. I understand the specialty, but that I
6 think is a secondary issue in this case.
7 Go ahead.
9 Q. So Mr. Kappel, now that you're able to
10 actually testify about your opinions, I'd like us to
11 go through them. Let's first talk about question --
12 THE COURT: I'm sorry. May I ask one
13 question on voir dire? I have qualified Mr. Kappel,
14 but I'd be interested in the number of times you've
15 testified in Federal Court.
16 THE WITNESS: Just once, personally
17 testifying.
18 THE COURT: And where was that?
19 THE WITNESS: That was in Arapaho County,
20 Colorado.
21 THE COURT: That was in federal court?
22 THE WITNESS: No, I guess state court.
23 THE COURT: What was the circumstance of the
24 case at that point?
25 THE WITNESS: Yes, it was a rainfall and wind

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1156
Trial
1 reconstruction of a rainfall and a rain event that

2 occurred in Arapaho County, Colorado.
4 You may proceed, Ms. Held.
6 Q. Mr. Kappel, I'd first like us to discuss your
7 conclusions for question 1, in which you analyzed the
8 magnitude of Hurricane Harvey over space and time.
9 So what results did the SPAS model
10 generate for Hurricane Harvey?
11 A. Well, SPAS produced several outputs,
12 including hourly gridded rainfall data, 5-minute
13 rainfall accumulation information that was provided
14 to the DOJ hydrologist, total storm isohyetal
15 patterns which represent the rainfall accumulation in
16 space, mass curves which represent the rainfall
17 accumulation in time, depth area duration tables,
18 which represent the rainfall accumulation in volumes
19 or three dimensions, and several other standard
20 outputs, including statistical fits against the rain
21 gauge observations and radar observations and other
22 general parameters of the rainfall.
23 Q. Now, in addition to providing electronic data
24 to the hydrologists, how did you illustrate the
25 output from the SPAS process in your report?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1157
Trial
1 A. Yeah, the output is illustrated in a series

2 of figures and tables in Appendix A of our report.
3 Those were also provided to Dr. Keim for his analysis
4 in his report.
5 Q. I'm going to show you a map at page 59?
7 Q. And what does this map show us, Mr. Kappel?
8 A. This map is known as a --
9 MR. VUJASINOVIC: I'm sorry.
10 Can we clarify, is this out of
11 Dr. Keim's report or Mr. Kappel's report?
12 THE WITNESS: Oh, I clarified that I provided
13 this same information that are in my report to
14 Dr. Keim as well for evaluation.
15 Q. BY MS. HELD: But which -- which report is
16 that figure coming from?
17 A. This is from my report, Appendix A.
18 MR. VUJASINOVIC: Thank you.
19 MS. HELD: And going forward, I represent
20 that all the figures that we'll be looking at in this
21 portion of the questioning are going to be from
22 Mr. Kappel's report.
23 MR. VUJASINOVIC: Thank you.
24 THE COURT: Ms. Held, you don't need to do
25 that. Why don't you just proceed.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1158
Trial
1 Q. BY MS. HELD: Mr. Kappel, so what does this

2 map show?
3 A. Yes, this map is a representation of the
4 total storm isohyetal map, which is the rainfall
5 accumulation for the total time frame analyzed. You
6 will notice it says 156 hours here. That's the total
7 time frame, though, as analyzed by SPAS to ensure
8 we've captured all of the Harvey rainfall. It starts
9 slightly before the rainfall begins, and ends
10 slightly after the rainfall ends, so we bracket the
11 storm.
12 These colors on here represent rainfall
13 accumulation magnitudes, so the browns and yellows
14 are lower rainfall accumulation amounts. The greens
15 are a medium rainfall amount, in this case medium,
16 talking about 20 to 30 inches, and then the purples,
17 pinks and whites are the highest rainfall amounts.
18 The highest rainfall amount is just over 60 inches
19 around the Beaumont/Port Arthur region, and in or
20 around parts of Houston as well, where the rainfall
21 amounts were well over 50 inches.
22 Then, also represented, is the area of
23 interest that the DOJ hydrologist provided, which is
24 outlined in red here, this overall hydrologic basin,
25 about 1834 area miles. Within the basis are the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1159
Trial
1 three watersheds of interest, Addicks watershed,

2 Barker watershed and Buffalo Bayou watershed, each
3 just over 130 square miles.
4 Q. And did you create any other maps in your
5 report?
6 A. We did, so this is the total storm image. We
7 also created a mass of rainfall accumulation at
8 standard durations, such as 24 hours, 72, and 120
9 hours. We created tables of the rainfall
10 accumulation in time or mass curves. We created
11 depth areas, duration tables and so on.
12 Q. I'm most interested in the maps here today,
13 so will you please turn to page 199 of your report?
16 A. Yes, this is a map of the 120-hour maximum
17 rainfall accumulation over the Addicks watershed,
18 which in the previous figure was the watershed
19 outlined in orange.
20 Q. And what does this figure show us?
21 A. This figure shows us the spatial accumulation
22 of rainfall for the 120-hour duration or five-day
23 duration, and what it is showing is a magnitude of
24 rainfall accumulation.
25 We can see that we have a range that

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1160
Trial
1 goes from 31.3 inches to 36.7 inches over the

2 basin -- I'm sorry, from 27.5 inches of elevation,
3 and an average 31.3.
4 27.5 is the minimum, 36.7 is the
5 maximum. 31.3 is the average over the basin.
6 More importantly, we can see that there
7 is a spatial variation of that rainfall accumulation,
8 with some areas receiving very high amounts, and
9 other areas receiving relatively lower amounts. It's
10 not uniform across the basin. It varies
11 significantly.
12 Q. Did you also create maps for the Addicks
13 watershed for the 24 hour and 48 hour durations?
14 A. Yes, we did.
15 Q. And were in your report are those maps
16 located?
17 A. Those maps are included as figure 19 on page
18 198. That is the maximum 24-hour accumulation, and
19 figure 21 on page 200 represents the maximum 100 --
20 sorry. Let's back up.
21 Figure 19 on page 198 is the 72-hour
22 accumulation, and figure 18 on page 197 is the
23 maximum 24-hour accumulation.
24 Q. Now will you please turn to page 205?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1161
Trial

2 A. This map, like the previous discussion, is
3 the maximum 120-hour precipitation over the Barker
4 watershed at this time. And again, the
5 representation is the same as far as a spatial
6 accumulation of the magnitude of rainfall over that
7 time period, with a basin average of 31.1 inches, a
8 basin maximum of 38.8 inches, and a basin minimum of
9 23 inches.
10 And again, notice that there is
11 significant spatial variation in how the rainfall
12 accumulated. It is not uniform in space and time.
13 Q. And did you also create maps for the 24-hour
14 and 48-hour duration for the Barker watershed?
15 A. Yes, we did.
16 Q. And where are they located in your report?
17 A. Those are located as figure 24 on page 203
18 for the 24-hour duration, and figure 25 on page 204
19 for the 72-hour duration.
20 Q. And did you also create maps for the 24-hour,
21 48-hour and 72-hour durations for the overall area of
22 concern that was outlined in red?
23 A. We did. We created the same set of maps for
24 the overall area outlined in red.
25 Q. And where are they in your report?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1162
Trial
1 A. They are located in figures starting on

2 figure 11 on page 190 for the 24-hour duration, and
3 figure 12 on page 191, the 72-hour duration, and
4 figure 13 on page 192 for the 120-duration.
5 Q. And for the Buffalo Bayou watershed, did you
6 create similar maps?
7 A. The exact same maps were created for the
8 Buffalo Bayou watershed as well, yes.
9 Q. And will you please tell us where they are in
10 your report?
11 A. The Buffalo Bayou watershed is located on
12 figure 30 for the 24-hour duration on page 209. The
13 Buffalo Bayou 72-hour duration is figure 31 on page
14 210, and the Buffalo Bayou 120-hour duration is
15 figure 32 on page 211.
17 So now we've gone through your opinion
18 on question 1, which was the magnitude of Hurricane
19 Harvey. Now let's go to question 2 where we asked
20 you to analyze the rarity.
21 So we discussed in your qualifications
22 the 10 steps that you took. Why don't we -- now
23 we've already gone through steps 1 and 3, and your
24 qualifications, which was the data that you used; is
25 that right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1163
Trial
1 A. Yes, steps 1 through 3 are exactly the same

2 in either process; that's correct.
3 Q. So let's turn to step 4, which involves a
4 heterogeneity.
5 Could we turn to page 181 of your
6 report, please?
8 Q. So what does the table on this page show?
9 A. Yes, again the heterogeneity test is just a
10 fancy way of saying do all these stations fit in the
11 same meteorological environment from a statistical
12 perspective. The results of the heterogeneity test
13 for the 24 stations used in this analysis showed that
14 they passed the test of being in the same field,
15 which is they all have to have a value of less than
16 2, which they do.
17 Q. Let's now look at what you did for this case
18 for step number 5 for the goodness of fit
19 measurement, and I'd like us to go to panels 182 and
20 183.
22 Q. Can you please discuss this step?
23 A. Yes. Again, these are the plots of the
24 goodness of fit test I described earlier, where you
25 plot all of the station data, which are the black

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1164
Trial
1 crosses on each of these graphics, and you run the

2 probability distribution test against each of those
3 data sets.
4 The curve that come closest to best
5 fitting the data are the ones that are chosen as the
6 most appropriate in probability distribution for that
7 set of data. In this case, the simple answer is two
8 different curves are appropriate for this type of
9 data set. The GNO and the general extreme value
10 probability distributions.
11 Q. So what then did you do next for this
12 analysis?
13 A. Yeah, from that process we chose the GEV
14 distribution, which is the same one that you use in
15 standard precipitation analysis, such as NOAA Atlas
16 14, to represent the probability distribution of the
17 rainfall in this analysis. And from that you get a
18 regional growth curve which represents the shape of
19 how the probability changes through the rarity of the
20 event.
21 Q. And can we look at page 180 of your report,
22 please?
24 Q. And what does that show?
25 A. This is a sample of a regional growth curve

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1165
Trial
1 after the probability distribution has been chosen

2 from the GEV type. And these are derived at every
3 grid across the domain being analyzed.
4 Q. And what did you do after that?
5 A. At this point we developed a mean annual
6 maximum value, as described previously, for each of
7 the 24 stations in our area of interest. Then we
8 spatially distributed those mean annual maximum
9 values using a climatological base map to come up
10 with the scaling factor to apply to this regional
11 growth curve at each location across the entire
12 domain and analyze it.
13 Q. And can we please turn to page 185 in your
14 report?
16 Q. And what are we looking at here?
17 A. Sure. This is just an example of the initial
18 mean annual maximum data plotted with a regression
19 fit curve before spatial distribution is applied.
20 And what you'll notice here, the bottom line is,
21 there's a spread among the point values. Each of the
22 blue circles is each of the 24 stations mean annual
23 maximum value plotted, and the fit along the best fit
24 line is not as exact as it can be with more
25 information.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1166
Trial
1 Q. And what was the step after this?

2 A. Yes, so the next step would be to apply the
3 climatological base map to get a better fit along
4 that line.
5 Q. And where is that in your report?
6 A. That's displayed in figure 7 of our report on
7 page 186.
8 Q. Can we turn to that, please?
9 A. So here you see the spatial fit of those data
10 points is much more aligned right along that line.
11 Much better fit, so the application of the
12 climatological base map allows those individual point
13 mean annual maximum values to be much more accurate
14 in a spatial pattern across the entire area of
15 interest.
16 THE COURT: Ms. Held, I have a question of
17 Mr. Kappel. I just don't understand something.
18 What is the climatological base map?
19 THE WITNESS: Absolutely.
20 A climatological base map is a map of
21 something like mean annual precipitation across a
22 given location, or monthly average precipitation, so
23 it's telling you overall the last, say 100 years over
24 Harris County, rainfall in the month of August has
25 accumulated this way in this region. Therefore, we

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1167
Trial
1 would expect any storms occurring in the future to

2 follow the same accumulation pattern. So it's a
3 climatology of rainfall accumulation over a given
4 location.
5 Q. BY MS. HELD: Are you able to show any of
6 the --
7 THE COURT: Ms. Held, just a moment. I
8 haven't finished.
9 MS. HELD: I'm sorry.
10 THE COURT: If I could ask another question
11 to follow up.
12 How is the climatological base map used
13 to adjust the data plots that are shown on page 185?
14 THE WITNESS: The plots shown on 185, which
15 is figure 6, are the data at the station location, so
16 our overall area of interest, we have 24 data points,
17 and we have a value at each of those points.
18 THE COURT: That I understood. That's for
19 the event at issue; is that correct?
20 THE WITNESS: No, that's over the entire
21 period of record --
22 THE COURT: I have a set of questions later
23 on about the period of record.
25 So at each of those points we have a

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1168
Trial
1 value of a mean annual maximum. Then we take the

2 climatological base map and relate that depth at that
3 point to the depth of every other surrounding grid,
4 so this point may have a depth of 5 inches, but the
5 grid next to it may have a depth, on an annual basis,
6 of 10 inches; therefore, it would be a 2:1 ratio, and
7 we would adjust the values accordingly to that ratio
8 comparing the point value to the adjacent grade
9 values.
11 You may proceed, Ms. Held.
13 Q. Mr. Kappel, do you have any examples of the
14 base map that you used here in your report?
15 A. We use what's called the PRISM climatology,
16 which is the base map, and the examples of the
17 resulting combination of the mean annual maximum,
18 spatially distributed are included in several figures
19 in the report, starting with figure 8 on page 187.
20 Q. Thank you.
21 So let's go back to the steps to create
22 these annual exceedance probabilities. I believe we
23 were at the step where you were utilizing climatology
24 to spatially distribute the MAM points.
25 What's the next step after that?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1169
Trial
1 A. The next step after that is to have a spatial

2 representation of the mean annual maximum values
3 across your area of interest, and take the value at
4 each point and scale the regional growth curve that
5 was developed during the goodness of fit test, to fit
6 the mean annual max value at that particular point.
7 Q. And then what happens after that?
8 A. Then the final part is to take the rainfall
9 accumulation at the duration of interest, let's say
10 120 hours, and each point, plot that on the curve,
11 see where it hits that scale of regional growth
12 curve, go down and read from the bottom axis and see
13 what your annual exceedance probability equates to.
14 Q. Can we please turn to page 196 of your
15 report?
17 Q. And what are we looking at in this figure?
18 A. This figure is an example of the basin
19 average annual exceedance probability amounts for the
20 24-hour, 72-hour and 120-hour duration plotted
21 against the probability plots that have been scaled
22 through the basin average.
23 So the blue line here is the 120-hour
24 duration probability plot. Again, when I say basin
25 average, I'm referring to the overall basin of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1170
Trial
1 interest that's 1834 square miles as provided by the

2 DOJ hydrologist.
3 Plotted on there are these individual
4 points. These are the basin average rainfalls for
5 the overall basin, so for example, if we take the
6 basin maximum, that's the red dot right here at 120
7 hours. The basin maximum was 50 inches of rainfall.
8 If you go across, hit the 120-hour line, come down to
9 the axis, we have a recurrence interval then of -- 1,
10 2, 3, 4 -- just over 4,000 years; okay?
11 Conversely, if you look at the 24-hour
12 line, and you look at the minimum, we have a
13 recurrence interval of just under 20 years.
14 Q. So in addition to this line graph, how else
15 did you illustrate the annual exceedance
16 probabilities in your report?
17 A. Well, in the same way as the total rainfall
18 accumulation for a given duration was displayed, we
19 made spatial maps representing the annual exceedance
20 probability spatially over each of the basins for
21 three key durations, 24-hours, 72-hours and
22 120-hours.
23 Q. I'd like us now to turn to page 202 of your
24 report.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1171
Trial
1 Q. What are we looking at in this figure?

2 A. Yes, figure 23 on page 202 is a
3 representation of the spatially mapped annual
4 exceedance probability for the 120-hour duration over
5 the Addicks watershed. So this is how rare the
6 rainfall was at 120-hours over the Addicks watershed.
7 And again, you'll note that it's not
8 uniform. There is spatial variation here where
9 you're going from annual exceedance probabilities of
10 over 1800 years in these areas in brown, to annual
11 exceedance probabilities of just under 500 years in
12 these areas in green. So there is a variation, just
13 like there was a variation in rainfall accumulation
14 across the basin.
15 Q. And in your report did you also provide maps
16 for the 24-hour and 72-hour durations for the Addicks
17 basin?
18 A. Yes, we did.
19 Q. And where are they?
20 A. Those reports are contained in figure 21,
21 which is the presentation of the 24-hour annual
22 exceedance probability on page 200, and figure 22,
23 which is the 72-hour annual exceedance probability
24 over the Addicks watershed on page 201.
25 Q. Now I'd like us to turn to page 208.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1172
Trial
1 What are we looking at here?

2 A. This is a representation of the spatially
3 mapped annual exceedance probability over the Barker
4 watershed, and again, it's showing the spatial
5 variation of the annual exceedance probability, and
6 it shows that there's a wide variety of recurrence
7 intervals or rarity of the event.
8 Again, that's a 120-hour duration. We
9 ranged from 260 to 2,663 years in these areas in
10 brown, to a minimum of 189 years in these areas in
11 light green and blue. So a lot of variation. In all
12 cases the rainfall, though, was very rare over the
13 Barker watershed.
14 Q. And did you also create maps for the 24-hour
15 and 48-hour durations for the Barker watershed?
16 A. We did.
17 Q. And where in your report are they located?
18 A. Those maps are contained as figure 27, which
19 represents the 24-hour annual exceedance probability
20 on page 206, and figure 28, which represents the
21 72-hour duration on page 207.
22 Q. And did you also create similar maps for the
23 Buffalo Bayou watershed?
24 A. Yes.
25 Q. And where in your report are they?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1173
Trial
1 A. The Buffalo Bayou watershed figures are

2 contained in figure 33, which represents the 24-hour
3 annual exceedance probability, which is page 212,
4 figure 33, which represents the 72-hour annual
5 exceedance probability over Buffalo Bayou watershed.
6 Figure 34, which represents the 72-hour annual
7 exceedance probability on page 213, and figure 35 on
8 page 214, which represents the 120-hour annual
9 exceedance probability.
10 Q. And what about the overall area of concern as
11 provided to you by the hydrologist? Did you create
12 similar maps?
13 A. We did.
14 Q. For the 24-hour, 48-hour and 72-hour
15 durations?
16 A. Yes.
17 Q. And where in your report are those maps?
18 A. Those maps are on figures 14, which is on
19 page 193 for the 24-hour duration; figure 15, which
20 is on page 194 for the 72-hour duration; and figure
21 16, which is on page 120 -- I'm sorry, which is for
22 the 120-hour duration, on page 195.
24 I'd now like us to turn to Dr. Barry
25 Keim's report, and to look at page 36.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1174
Trial
2 Q. Now is this table in your report?
3 A. This table is not in my report.
4 Q. Do you recognize this table?
5 A. I do.
6 MR. VUJASINOVIC: Judge, I'm sorry to
7 interrupt.
8 THE COURT: Mr. Vujasinovic.
9 MR. VUJASINOVIC: Yes, your Honor, I would
10 object. This is a different expert's report. This
11 is Dr. Keim's report, not Mr. Kappel's.
12 THE COURT: Mr. Vujasinovic, I understand
13 that.
14 I have a question for Ms. Held.
15 Why are we doing this?
16 MS. HELD: Your Honor, Mr. Kappel created the
17 table with Applied Weather Associates, and so we
18 would like to --
19 THE COURT: We'll find out.
20 In other words, this witness can testify
21 regarding the particular table you've identified?
23 THE COURT: All right.
24 Let's go forward.
25 Q. BY MS. HELD: Mr. Kappel, what can you

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1175
Trial
1 tell -- well, let's make sure this is clear: Who

2 created this table?
3 A. I created this table.
4 Q. And how did you go about creating this table?
5 A. This table is a summary of the information we
6 just went over, which is the rainfall accumulation
7 and the rarity of that rainfall accumulation over the
8 area of interest, and then also the same analysis
9 done for other recent large storm events; in this
10 case Hurricane Allison in June 2001, and the Tax Day
11 storm of April 2016, both of which we had previously
12 analyzed with our SPAS process as previously
13 described.
14 Q. And what does this table show us about
15 Hurricane Harvey?
16 A. Well, this table represents the rainfall
17 accumulation over the overall DOJ hydrologist's area
18 of interest, the 1834 square mile basin that was
19 outlined in red that I described previously, and it
20 compares the rainfall accumulation for the 24-hour,
21 72-hour and 120-hour durations against Hurricane
22 Allison in June of 2001, and the Tax Day storm of
23 April 2016, where we have an average maximum and a
24 minimum accumulation over the basin from a pure
25 magnitude of accumulation, and our average maximum

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1176
Trial
1 and minimum of the annual exceedance probability of

2 that rainfall at each of those durations.
3 The table does a comparison against
4 those other two storms to show how different or
5 similar Hurricane Harvey was to each of those storms,
6 and in the case of this comparison, Harvey is a much
7 more significant rainfall event over those areas of
8 interest at those durations, as observed. This is
9 not moved around or transpositioned. This is as
10 observed as the rainfall accumulated over those
11 basins.
13 MS. HELD: Your Honor, I would like to move
14 Mr. Kappel's expert report, which is located at pages
15 DX601_38 through DX601_222 into evidence, and I would
16 also like to move page DX601_36 of Dr. Keim's report
17 into evidence.
18 THE COURT: The Court will reserve until
19 after cross-examination and after the Court's
20 questions. I'll wait to ask most of my questions
21 after Mr. Vujasinovic has finished.
23 THE WITNESS: Your Honor, can I have some
24 water?
25 THE COURT: Yes, you might get some help from

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1177
Trial
1 your colleagues.
2 MR. VUJASINOVIC: Did you pass?
3 MS. HELD: Yes.
4 THE COURT: Mr. Vujasinovic, wait just a
5 moment. Oh, we have some help, Mr. Shapiro.
7 MR. VUJASINOVIC: Judge, can I set up?
8 THE COURT: In fact, you may proceed.
9 MR. VUJASINOVIC: Thank you, Judge.
10 CROSS-EXAMINATION
11 BY MR. VUJASINOVIC:
12 Q. Hi, Mr. Kappel.
13 A. Good morning.
14 Q. How many storms did you say you analyzed for
15 their rarity?
16 A. For their rarity?
17 Q. Yes, sir.
18 A. We've analyzed over a hundred events for
19 their rarity specifically.
20 Q. That's a lot of rare storms?
21 A. Yes, it is.
22 Q. Now you gave the data that you've generated
23 in this case to the DOJ hydrology team. That's
24 Dr. Nairn; right?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1178
Trial
1 Q. And you also gave it to Dr. Barry Keim.

2 A. Correct.
3 Q. And they both have Ph.D.s?
4 A. I don't know.
5 Q. You don't have a Ph.D.?
6 A. No, I do not.
7 Q. And so the Ph.D.s did not have any
8 involvement in coming with up with the data you came
9 up with; is that correct?
10 A. No.
11 Q. And they're basically relying on your data at
12 face value; is that right?
13 A. No.
14 Q. That's not right?
15 A. No.
16 Q. Well, maybe the other side can clear that up.
17 You used proprietary software owned by
18 your company to generate this data; is that correct?
19 A. No, it's not proprietary software.
20 Q. You used -- it's a proprietary system?
21 A. No, it is a series of algorithms that are
22 based on the guidance of the National Weather Service
23 and the World Meteorological Organization of how to
24 take rainfall accumulation data and convert that into
25 a space, time and magnitude of accumulation. We

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1179
Trial
1 simply have advanced those algorithms using

2 computer-based technology.
3 Q. Did you report -- you said here this
4 storm -- can you read that?
5 A. Yes.
6 Q. "This storm was analyzed with Applied Weather
7 Associates."
8 That's your company; right?
9 A. Right.
10 Q. The proprietary software program -- this SPAS
11 thing you've been talking about; right?
12 A. Yes.
13 Q. Now the actual analysis is largely automated;
14 right?
15 A. I can't answer that with a yes or no.
16 Q. Okay. Well, your report answers it, doesn't
17 it, right here, where you said although largely
18 automated SPAS, whatever?
19 A. Yes.
20 Q. Right?
21 A. Yes.
22 Q. Okay. And your data, all this data is
23 subject to a disclaimer; isn't that right?
24 A. Yes, it is.
25 Q. Where is that disclaimer?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1180
Trial
1 A. It should be included as a paragraph in the

2 beginning of the report.
3 Q. Right there; right?
4 A. Yes, it's there. I can't read it but I know
5 what it says, yes.
6 Q. I can't either, but you remember we figured
7 it out in your deposition?
8 A. Yes.
9 MR. VUJASINOVIC: May I approach, your Honor?
10 THE COURT: Yes.
11 Q. BY MR. VUJASINOVIC: This is your deposition.
12 A. Thank you.
13 Q. Go to page 7 real quick?
14 THE COURT: Now Mr. Vujasinovic, we can ask a
15 couple of questions, but we're not necessarily at the
16 point of inconsistency.
17 MR. VUJASINOVIC: You're right.
18 THE COURT: Let's be precise.
19 MR. VUJASINOVIC: Yes, sir.
20 Q. Mr. Kappel, your disclaimer says the
21 following, please just either admit or deny.
22 "We cannot guarantee that accuracy or
23 completeness of the input weather radar data, so the
24 results inherently carry a degree of uncertainty."
25 That says that; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1181
Trial
1 A. Correct.
2 Q. And "We provide the information with -- we --
3 the understanding that is not guaranteed to be
4 completely unequivocal."
5 That's what that says; correct?
6 A. Correct.
7 Q. Your radar rainfall accumulation estimates
8 are at times over 100 percent different than the
9 observed rain gauge data; is that correct?
10 A. Yes.
11 Q. You have not quantified how accurate your
12 radar rainfall data is in relation to the rain gauge
13 data that actually was measuring the rainfall on an
14 hourly basis; is that correct?
15 A. No.
16 Q. Let me rephrase.
17 So I'm trying to understand how accurate
18 your radar rainfall data is in relation to the rain
19 gauge data that actually was measuring the rainfall
20 on an hourly basis. And so was it plus or minus 50
21 percent, plus or minus 100 percent? Can you tell us
22 today?
23 A. Yes.
24 Q. In your deposition, did you -- did you
25 state --

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1182
Trial
1 THE COURT: Now, Mr. Vujasinovic.

3 THE COURT: Mr. Kappel can tell us today.
4 Let's find out what he has to say.
5 Q. BY MR. VUJASINOVIC: Let's go ahead and then
6 we'll -- go ahead.
7 A. Yes.
8 No rain gauge observations that had no
9 missing hourly data or spatial correlation issues
10 were changed; they were accurate to 100 percent.
11 Rain gauge data that had missing hourly information
12 and/or spatial correlation issues with co-located
13 issues, gauges were adjusted. The average for all
14 1302 gauges was less than 5 percent, 4.8 percent to
15 be precise. The average of all gauges that recorded
16 more than 10 inches of precipitation, which is
17 relevant for this case, was less than 2 percent
18 across the entire domain, and again, no gauges with
19 missing data were corrected.
20 Q. In your deposition your answer can't give --
21 THE COURT: Mr. Vujasinovic, you'll have to
22 convince me that there was an inconsistency. You
23 haven't done that.
25 Q. You applied an adjustment to the entire

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1183
Trial
1 domain to optimize the radar data on an hourly basis;

2 is that correct?
3 A. Correct.
4 Q. Okay. And you don't know how much that
5 adjustment was each hour that was being applied to
6 the entire domain; is that correct?
7 A. Correct.
8 THE COURT: Mr. Vujasinovic, I have a
9 question.
11 THE COURT: What does optimize mean in
12 context.
13 THE WITNESS: Certainly to your question
14 earlier about the climatology base map is used to
15 adjust our at-site data, the same thing happens with
16 the radar. So the radar, every hour, puts out an
17 equation that converts what it's seeing in the
18 atmosphere to the rainfall accumulation on the
19 ground. That rainfall accumulation on the ground
20 from the radar is different from the rainfall amount
21 at a rain gauge point.
22 And so a correction is applied so that
23 radar rainfall accumulation matches exactly the rain
24 gauge observation on the ground.
25 THE COURT: That helps. Thank you.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1184
Trial
1 Mr. Vujasinovic.
2 MR. VUJASINOVIC: Thanks, Judge.
3 Q. Do you know who Jeff Lindner is?
4 A. I do.
5 Q. And he told us at Harvey time, the flood
6 district here, Harris County, had 154 rain gauges
7 throughout the county. You knew that?
8 A. Yes.
9 Q. And they measured rain on an hourly basis;
10 correct?
11 A. They do.
12 Q. And you know the county calibrates them at
13 least twice a year to make sure they are recording
14 accurate data?
15 A. I don't know that answer.
16 Q. Yet you told the Judge earlier that it's
17 accurate data and they do a good job, didn't you?
18 A. Yes, sir.
19 Q. Have you accessed the Harris County FWS
20 website?
21 A. I have.
22 Q. This is similar to photo PDX1, your Honor,
23 but I did that this morning.
24 Do you see that?
25 A. I do.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1185
Trial
1 Q. And those are the current -- there's some

2 more now, but they're current Harris County rain
3 gauges; right?
4 A. Correct.
5 Q. And they all show inches of rainfall; right?
6 A. Correct.
7 Q. We've had some rain here.
8 A. Yes.
9 Q. Okay. And now your Harvey rainfall amounts
10 into the Addicks and Barker watersheds are higher
11 than those recorded by the county rain gauges; is
12 that correct?
13 A. In some cases, yes.
14 Q. Okay. And in the four-day -- your five-day
15 max is higher than the Harris County four-day max for
16 Harvey into the watersheds of that Addicks and
17 Barker; correct?
18 A. That would make sense, yes.
19 Q. And that -- your data makes Harvey look like
20 a bigger storm than the Harris County gauges say it
21 was within these two reservoirs; is that correct?
22 A. No.
23 Q. Well, you said to the Judge earlier, your
24 five-day max into Addicks is 36.7; right?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1186
Trial
1 Q. And the same for Barker for you was 38.8;

2 right?
3 A. Correct.
4 Q. Have you ever looked at the Harris County
5 report talking -- do you know what the four-day max
6 numbers were for the Addicks and Barker watershed?
7 A. I did see them yesterday from an exhibit that
8 was provided by my counsel.
9 Q. So do you under oath deny that your numbers
10 are higher than Harris County?
11 A. No, I'm simply saying my data didn't make
12 that happen, Hurricane Harvey rainfall made that
13 happen.
14 Q. Based on you're -- the data you came up with?
15 A. Based on the analysis and what occurred, yes.
16 Q. Okay. And your analysis domain was a
17 geographical region of over 120,000 square miles. Is
18 that right?
19 MS. HELD: Vague. Objection, your Honor,
20 that question is vague.
21 THE COURT: Overruled.
22 I think Mr. Kappel understands exactly
23 what's going on.
24 THE WITNESS: Yes.
25 The overall SPAS analysis domain for the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1187
Trial
1 Harvey analysis is 120,612 square miles, and the area

2 of interest provided by the DOJ hydrologist was 1834
3 square miles; correct?
4 Q. BY MR. VUJASINOVIC: Well, the area of
5 interest was 1800 square miles; right?
6 A. 1834; correct.
7 Q. And the two watersheds are only 260 square
8 miles; is that right?
9 A. 134 for one and 132 for the other.
10 Q. And you used these 1,302 data points from 13
11 different sources; right?
12 A. Correct.
13 Q. And your sources include sources that are not
14 even considered official; right?
15 A. Correct.
16 Q. However, the hourly calibrated Harris County
17 County rain gauges are definitely considered
18 official; correct?
19 A. I can't answer that question yes or no.
20 Q. How many of the 154 county rain gauges did
21 you use as a rainfall data point in your analysis?
22 A. I believe only four were available
23 immediately after Hurricane Harvey.
24 Q. And how many of those four were actually
25 within the Addicks or Barker reservoirs or

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1188
Trial
1 watersheds?
2 A. I can't answer that question.
3 Q. Well, the answer is zero. You know that,
4 don't you?
5 A. No, but I appreciate that answer. I believe
6 you if you say it's zero.
7 Q. You haven't even tried to figure that out
8 before just now?
9 A. No, because you put all 1300 gauges into one
10 bucket and consider them usable once they passed our
11 quality assurance and quality control corrections.
12 It's not relevant which the source is from at that
13 point.
14 Q. Like these 350 what you call supplemental
15 sources? It's like people have a bucket in their
16 backyard; right?
17 A. Some of them are, yes.
18 Q. That people like on social media talk about
19 the water in a beer can or something; right?
20 A. It could be. It's similar to the world
21 record rainfall for six hours was recorded in
22 Smithport, Pennsylvania in July of 1942, and it was
23 recorded in a pickle jar next to a chicken coop, yet
24 that's considered the official world record rainfall.
25 Q. I hadn't thought of pickle jars. I was going

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1189
Trial
1 to ask you about a coffee can, but that's fine.

2 Now of the four county gauges that you
3 did use, do you know where they are?
4 A. No, not from that map. I'd have to -- they
5 are in our Appendix B and they give the exact
6 latitude and longitude and elevation of each station
7 in Appendix B.
8 Q. Okay. So they are listed in your report at
9 Appendix B. First of all, please turn to Appendix B,
10 page 3 of 40, sir.
11 THE COURT: What's the major number?
12 MR. VUJASINOVIC: Oh, my goodness. I don't
13 know.
14 THE WITNESS: I'll tell you.
15 Q. BY MR. VUJASINOVIC: Please tell us.
16 A. It is page 128, DX601_128.
17 Q. Okay. I have that on the screen, sir; right?
18 A. Yes.
19 Q. So those are three of the Harris County
20 gauges; right?
21 A. Yeah. The HCFWS stands for Harris County
22 Flood Control --
23 Q. Excuse me, I've got limited time, so let
24 me --
25 THE COURT: Now, Mr. Vujasinovic, slow down.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1190
Trial
1 MR. VUJASINOVIC: I'm on the clock.

2 THE COURT: I understand. All of us are on
3 the clock, but let's just take it a step at a time.
5 THE WITNESS: The column called source lists
6 the source of the rain gauge and that column says
7 HCFWS, which is the Harris County Flood Control
8 District, yes.
9 Q. BY MR. VUJASINOVIC: That's these indications
10 right here under source; right?
11 A. Correct.
12 Q. And it's got a description here as to kind of
13 the name of the gauge, these three. We've got Cedar
14 Bayou, Smith Gully and Goose Creek; is that correct?
15 A. That's correct.
16 Q. That's three of the four; right?
17 A. It's three of the stations from Harris County
18 Flood Control District, yes.
19 Q. And the fourth is going to be on page 16 of
20 40; right? Right there.
21 A. Can -- the one highlighted in yellow?
22 Q. Yes, sir.
23 It says Harris County Flood Control
24 District, do you see that?
25 A. I see that, yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1191
Trial
1 Q. Do you see where it says Clear Creek at I-45?

2 A. I do.
3 Q. All right. Now using -- have you gotten on
4 the Harris County FWS site and plugged those four in
5 to be able to tell the Judge where they are within
6 Harris County?
7 A. I have not.
8 Q. Okay. Well, I did that. Do you mind if I
9 put that up?
10 A. Sure.
11 Q. Okay. All right. So you see where the
12 reservoirs way over there are?
13 A. I assume they are the two black circles on
14 the far west side; is that correct?
15 Q. I assume you would know that just by looking
16 at the map.
17 THE COURT: Mr. Vujasinovic, we don't need
18 the extra commentary, do we?
20 Q. Is that correct? Is it the two black circles
21 on the left?
22 A. Yes, sir.
23 Q. Thank you. And then, so on the four county
24 gauges in your report, some of them, like Goose Creek
25 have more than one listing, so I circled all the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1192
Trial
1 gauges that are associated with the name that's

2 within your four, and they are all located on the far
3 east side of Harris County.
4 Do you have any reason to deny that?
5 A. No.
6 Q. And what part of Harris County received the
7 most rain in Harvey?
8 A. The far east side.
9 Q. And in fact Jeff Lindner was here and he told
10 us which Harris County rain gauge had the maximum
11 recorded rain throughout Harris County. Guess which
12 one that is?
13 A. I have no answer for that.
14 Q. It's this one right here, the Clear Lake
15 gauge, gauge sensor ID number 110.
16 A. Okay.
17 Q. Okay. So your proprietary software happened
18 to pick four county gauges that were all located in
19 the furthest east part of Harris County hardest hit
20 by Harvey; right?
21 A. Hardest hit by Harvey in Harris County;
22 correct.
23 Q. Yes. And not only that, but your proprietary
24 software managed to pick the maximum rain gauge in
25 Harvey; is that right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1193
Trial
1 A. No, that's not right.

2 Q. Within Harris County?
3 A. No, that's not right either. There were
4 several other gauges in Harris County.
5 Q. I'm limiting this to the Harris County gauges
6 that you talked about there?
7 A. Of the Harris County Flood Control District
8 gauges, yes.
9 Q. Okay. And your software did not pick any of
10 the Harris County Flood District gauges located
11 within the reservoirs that this case is about; is
12 that correct?
13 A. One quick correction. Our software does not
14 pick gauges in any matter. The gauges are given to
15 us through data sources such as Harris County Flood
16 Control District website, the National Weather
17 Service website, and so on. So the software does not
18 pick any gauges, the gauges we used.
19 Q. So you personally picked them yourself?
20 A. Our program analyst and myself did, yes.
21 Q. So actually people picked them?
23 Q. And so people made the conscious decision to
24 pick Harris County gauges on the far east side of
25 Harris County and nothing in the reservoir area?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1194
Trial
1 A. We picked all available gauges that were

2 available immediately following the event, yes.
3 Q. Are you familiar -- you talked about NOAA
4 Atlas 14?
5 A. I am familiar with NOAA 14, yes.
6 Q. And that is updated return periods calculated
7 by NOAA issued late last year, 2018; is that correct?
8 A. Correct.
9 Q. They updated their return periods throughout
10 Texas; is that right?
11 A. Correct.
12 Q. And especially for the Houston area, NOAA had
13 some big changes; right?
14 MS. HELD: Objection, vague.
15 THE COURT: Overruled.
16 THE WITNESS: There was -- depending on the
17 duration that you're discussing, there were some
18 difference between previous precip estimates, yes.
19 Q. BY MR. VUJASINOVIC: So in Houston, the
20 100-year estimate, as of last year, changed from 13
21 to 18 inches. You're familiar with that?
22 A. I can't answer that question yes or no
23 without more information.
24 Q. In Houston, previous 100-year events are now
25 25-year events according to the updated NOAA?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1195
Trial
1 A. I don't know.
2 Q. Okay. Let me hand you PX2293, 2294 and 2295.
3 MR. VUJASINOVIC: May I approach, your Honor?
4 THE COURT: Yes.
6 Q. BY MR. VUJASINOVIC: Do you recognize those,
7 sir?
8 A. I'm sorry, was there only supposed to be two
9 or three, because I have two of the 2295s and a 2294.
10 Q. You have '94 and '95? You're missing '93.
11 I've got it. Thanks Andrew.
12 Here you go.
13 A. Thank you.
14 Do you want this one back? The other
15 extra one?
16 Q. Sure, thanks.
17 A. You're welcome.
18 Q. Do you recognize those?
19 A. Yeah, those are charts of the recurrence
20 interval produced by NOAA Atlas 14 in table format
21 that NOAA Atlas 14 produces. These are the best fit
22 values with the confidence intervals also listed.
23 Q. And those are called point precipitation
24 frequency estimates; is that correct?
25 THE COURT: Just a moment, Mr. Vujasinovic.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1196
Trial
1 MR. VUJASINOVIC: Yes, your Honor.

2 MS. HELD: Counsel, would it be possible to
3 put that up on the screen? I don't believe we have
4 these documents.
5 MR. VUJASINOVIC: I don't have it on the
6 screen but I have hard copies for you right here.
7 THE COURT: Mr. Vujasinovic, we do not have
8 access.
9 MR. VUJASINOVIC: To those documents?
10 THE COURT: I don't think so. We're trying
11 to find them.
12 Mr. Vujasinovic, you may proceed.
13 MR. VUJASINOVIC: Okay. Thank you.
14 Q. Those are point precipitation frequency
15 estimates from the updated NOAA; is that correct?
16 A. Correct.
17 Q. And they identify longitude and latitude data
18 for where those points are.
19 A. Yes, on each of those figures that you
20 provided there is a latitude-longitude designation of
21 where that table represents that exact data from.
22 Q. I assume you can get on the NOAA website and
23 you can literally just get on there and punch in your
24 data and it pulls up; correct?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1197
Trial
1 Q. I'll represent to you that those are in the

2 Addicks and Barker area that we created for those.
3 Any reason not to think that from looking at those
4 numbers, sir?
5 A. No, I'm sure you're correct.
6 MR. VUJASINOVIC: Judge, we offer Plaintiffs'
7 Exhibits 2293, 2294 and 2295 at this time.
8 MS. HELD: Objection, your Honor.
9 This goes outside the scope of
10 Mr. Kappel's report. He did not utilize NOAA Atlas
11 14 in his analysis.
12 THE COURT: We can find out if Mr. Kappel is
13 familiar with these.
14 Q. BY MR. VUJASINOVIC: You're familiar with
15 those; right?
16 A. Yes.
17 Q. All right. And you did not use that updated
18 return interval data in your analysis; is that
19 correct?
20 A. Yes.
21 MR. VUJASINOVIC: Okay. We move the
22 admission of those three exhibits, Judge.
23 MS. HELD: I continue my objection, your
24 Honor.
25 THE COURT: The objection is overruled.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1198
Trial
1 They are admitted.

2 (Plaintiffs' Exhibits 2293, 2294 and
3 2295 were received in evidence.)
4 Q. BY MR. VUJASINOVIC: A rain event similar to
5 Harvey's rain over the Addicks and Barker watersheds
6 will happen again; correct?
7 A. There is a probability that it could happen
8 again in the future; correct.
9 Q. Okay. Now, more rain than what you say
10 Harvey put into the Addicks and Barker watersheds has
11 happened before in Harris County; correct?
12 A. I don't know that answer.
13 Q. So your data was 36 to 30 inches of five-day
14 max rain into those watersheds; is that correct?
15 A. I'd have to see what you're referring to,
16 please.
17 Q. It's your data. On direct you told the Judge
18 what -- do you recall --
19 A. You gave an amount that is not something I
20 recall. Can you be specific on that?
21 Q. Please, you tell us. Look in your report,
22 please, and remind the Court what you said rained
23 into the two watersheds during Harvey.
24 A. Over what duration?
25 Q. The five-day.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1199
Trial
1 A. Five-day 120-hour duration over which

2 watershed?
3 Q. Both of them.
4 A. Okay. We'll start with Addicks.
5 Addicks, the maximum amount was 36.7
6 inches. The average was 31.3, and the minimum was
7 27.5 at the 120-hour duration.
8 Q. And for Barker, just tell me the max, please.
9 A. Just the max.
10 The maximum at 120-hour duration over
11 Barker, it's hard to read my graphic. It looks like
12 38.6.
13 Q. All right. More rain than that has fallen in
14 Harris County before Harvey; correct?
15 A. Correct.
16 Q. That was Hurricane Allison.
17 A. That's one of the events, yes.
18 Q. And there's even more; right?
19 A. Yeah, Hurricane Harvey produced over 50
20 inches in Harris County; that's correct.
21 Q. Okay. I see. I get that. Thank you.
22 Now, so we can all agree in this
23 courtroom that Harvey's maximum five-day rain fall
24 into the Addicks and Barker watersheds is definitely
25 not unprecedented in Harris County; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1200
Trial
1 A. No.
2 Q. It's happened before in Harris County, hadn't
3 it?
4 A. Not over the Addicks and Barker watersheds.
5 Q. I know. But it's not unprecedented for
6 Harris County?
7 A. Not for Harris County, no.
8 MR. VUJASINOVIC: Thank you, sir.
9 I'll pass the witness.
10 THE COURT: Ms. Held, you may approach the
11 podium for redirect, but I have a couple questions.
12 These obviously will not count on counsel's time.
13 Mr. Kappel, I'd be interested in the array
14 of data you used for the annual exceedance
15 probability analysis. How many years of coverage and
16 how far back and forward it goes.
18 Can I refer to a table in the document?
19 THE COURT: Yes.
20 THE WITNESS: And while I'm doing that, I
21 will tell you that the average period of record was
22 58 years, with the maximum period of record being 108
23 years, and several stations ranged from 21 years to
24 108 years, but it's in the table here.
25 THE COURT: Those are derived from individual

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1201
Trial
1 measuring stations; is that correct?

2 THE WITNESS: That's correct, so think about
3 Houston International Airport. Its rain gauge
4 operational site may have a hundred year period of
5 record from today back through 1919, for example.
6 THE COURT: All right. Also, did you have
7 any data that extended over a period of time in the
8 particular area of the watersheds of Addicks and
9 Barker?
10 THE WITNESS: Yes, yes. So 18 of those 24
11 gauges were in the overall DOJ hydrologist's area of
12 domain, and then in the -- in figure 1 on page 178 of
13 our --
14 THE COURT: I'm sorry, just a moment.
15 THE WITNESS: That's okay. Page 178, figure
16 1.
17 THE COURT: Yes.
18 THE WITNESS: That shows the plot of each of
19 the 24 gauges used in relation to the area of
20 interest, and you'll notice for Addicks and Barker
21 specifically, there are two gauges within that
22 watershed. The two red dots there on the top column.
23 THE COURT: Those go about back how many
24 years?
25 THE WITNESS: Those two gauges? Of in table

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1202
Trial
1 1, which is on the next page, 179 --

2 THE COURT: Right.
3 THE WITNESS: -- it lists the period of
4 record, and from that table, if you look at the
5 latitude and longitude location of each of the
6 gauges, which is in the fifth column over, fourth and
7 fifth column over.
8 THE COURT: Yes.
9 THE WITNESS: We can identify the two gauges
10 of interest and look at their period of record. So
11 I'm trying to look at those. I don't know them off
12 the top of my head.
13 THE COURT: Well, I get the point, though.
14 May I just -- we're a little pressed for
15 time, but only a little. May I ask another question?
16 To what extent does the software you use
17 or the -- I guess the -- I'll just use the software
18 -- adjust for very recent experience? You testified
19 about two other events, the Tax Day flood and
20 Allison, and you obviously did calculations that
21 related to the Tax Day flood and Allison.
22 Does it slide everything forward? And
23 to what extent does it take account of very recent
24 experience?
25 THE WITNESS: Great question.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1203
Trial
1 So, you know, when a big event like an

2 Allison or Tax Day storm or Harvey happen, as long as
3 they are within the period of record as listed in
4 this table, they are included in the analysis. And
5 because we did this analysis just a few months ago,
6 all of those storms are included for each of these
7 events in that analysis.
8 THE COURT: To what extent do the algorithms
9 involved in the software weight the more recent
10 experience compared to the, I guess the experience
11 from 108 years ago?
12 THE WITNESS: Well, so keep in mind the
13 annual exceedance probability is a series of
14 statistical analyses. It's not -- that part is not a
15 software program. It is pure statistics running into
16 a data set, so they are accounted for in the same way
17 as it would have been done previously.
18 THE COURT: They were not weighted in any
19 respect, they're just part of the original --
20 THE WITNESS: Exactly. Part of the overall
21 habitat, exactly.
23 So if there is a change in circumstances
24 or condition over time, the algorithms, really,
25 they're just statistical calculations and do not

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1204
Trial
1 necessarily take that into account.

2 THE WITNESS: Yeah, they are just captured
3 with all the other data, exactly.
5 Ms. Held, you may proceed.
6 REDIRECT EXAMINATION
7 BY MS. HELD:
8 Q. Hello again, Mr. Kappel.
9 A. Hello.
10 Q. Could you explain why you did not use NOAA
11 Atlas 14 in your analysis?
12 A. Yes. For two reasons; the first being that
13 it was not finalized and ready for use as we were
14 doing our analysis, and more importantly, NOAA Atlas
15 14 only extends its probability distributions to a
16 thousand-year recurrence interval, and of course
17 Harvey rainfall far exceeded the thousand-year
18 recurrence interval.
19 Q. Now going back to the reliability of the SPAS
20 program methodology, how does the SPAS methodology
21 compare to other ways that are out there of
22 determining precipitation over time in a storm?
23 A. Yeah, again, the methodology is built on the
24 guidance from the National Weather Service and the
25 World Meteorological Organization of how you take

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1205
Trial
1 individual rain gauge observations and turn them into

2 a three-dimensional time/space/magnitude
3 representation of rainfall. The difference is in the
4 proprietary part that we talked about earlier are
5 that the algorithms we use utilize updated computer
6 methodology, such as GIS and other statistical
7 comparisons to adjust those rain gauges and radar
8 relationships.
9 Q. Plaintiffs' counsel asked you a number of
10 questions about the rain gauges that you utilized in
11 your analysis. I'd like you to turn to that part of
12 your report that had all the rain gauges listed in
13 the table, please.
14 A. Yeah.
15 Q. Which starts at page 129.
17 Q. 128.
18 A. Yeah, page 38 also lists total storm
19 isohyetal averages.
20 Q. So on page 151?
22 All right.
23 Q. Under the name of the organization, what does
24 HVFCN stand for?
25 A. Yeah, Harris County Flood Control Network.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1206
Trial
1 Q. And could you just take a quick look through

2 this table and see how many other pages have gauges
3 for the Harris County Flood Control District Network?
4 A. Yeah. There are several different
5 designations for the Harris County Flood Control
6 District, and there are numerous gauges from that
7 network in here.
8 Q. So for your analysis, you utilized other
9 Harris County gauges in addition to those ones that
10 Plaintiffs' counsel was discussing with you?
11 A. Correct.
12 Q. And overall, could you describe the
13 confidence in your results for the precipitation
14 values that you found over Harvey, and why you have
15 that confidence or thought?
16 A. Yes.
17 Again, as I've mentioned, we've done 724
18 of these rainfall analyses around the world in the
19 past 20 years, and several are in process now. And
20 of all those analyses, this is one of the highest
21 confidence that we have because we have such a large
22 number of rain gauge observations to give us ground
23 truth across the whole domain, 1302 stations. And we
24 have uninterrupted, unblocked radar information with
25 excellent coverage over the area of interest.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1207
Trial
1 Q. And those other studies that have been done

2 with what I'm understanding is less data, who have
3 they been accepted by?
4 A. They have been accepted by all federal and
5 state dam safety regulatory commissions, Federal
6 Regulatory Commission, Nuclear Regulatory Commission,
7 and so on, and well as been verified and validated
8 for use as direct input for hydrologic applications
9 that are used to design critical infrastructure such
10 as dams and nuclear sites across the United States.
11 MS. HELD: Thank you, Mr. Kappel.
12 I have no questions.
14 Mr. Vujasinovic, do you have any
15 recross?
16 MR. VUJASINOVIC: Very quick follow-up,
17 Judge.
18 RECROSS-EXAMINATION
19 BY MR. VUJASINOVIC:
20 Q. The climate is changing; correct?
21 A. I don't have an opinion on that.
22 MS. HELD: Objection, your Honor. Outside
23 the scope of direct.
24 THE COURT: No, it's not. Overruled.
25 Q. BY MR. VUJASINOVIC: Sorry, Judge.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1208
Trial
1 The climate is changing; correct?

2 A. I don't have an opinion on that.
3 MS. HELD: Objection.
4 THE COURT: Ms. Held.
5 MS. HELD: Objection, your Honor. Outside of
6 the scope of direct.
7 THE COURT: No, it's not.
8 Overruled.
9 Q. BY MR. VUJASINOVIC: Your testimony to the
10 Judge right now is you don't have any opinion on
11 whether the climate is changing?
12 A. Yes, I don't have an answer for that.
13 Q. Under oath, that's what you're telling Judge
14 Lettow right now, is I don't have an opinion on
15 whether the climate is changing?
16 A. Well, I mean, I'm sure it's changing, I am
17 sure it will change. It always changes, but I don't
18 have a personal opinion on whether that's correct.
19 Q. Do you have a scientific opinion on it?
20 A. No.
21 Q. Well, did you give me a different answer in
22 your deposition?
23 A. That the climate is changing? Yeah.
24 Q. Okay. So pull your deposition at page 74
25 real quick. Go to page 74, line 24.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1209
Trial
1 THE COURT: Did you ask exactly the same

2 question?
4 THE COURT: You did, Mr. Vujasinovic.
6 THE COURT: Do you have a copy?
7 MR. VUJASINOVIC: I'll give it to you right
8 now, if I may approach your clerk. It's page 73.
9 THE COURT: Ms. Held, do you have a copy?
10 MS. HELD: I do not have a copy with me, your
11 Honor.
12 MR. VUJASINOVIC: Here, I have another copy
13 for you.
14 Q. So it's actually page -- starts at page 74,
15 line 24.
16 THE COURT: Just a moment.
17 MR. VUJASINOVIC: And I'll wait until your
18 Honor tells me I can go.
19 THE COURT: Well, you can't yet.
20 MR. VUJASINOVIC: I understand.
21 THE WITNESS: I'm sorry, it's on page 73 in
22 my document, not 74.
23 MR. VUJASINOVIC: Well, I'm going to direct
24 the Court and you to page 73, line 24.
25 THE COURT: Right.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1210
Trial
1 Q. BY MR. VUJASINOVIC: Question -- do you

2 see -- I asked you --
3 THE COURT: Now the same question was asked.
4 MR. VUJASINOVIC: The question.
5 THE COURT: His answer is not inconsistent.
6 In fact, it is consistent.
7 MR. VUJASINOVIC: Judge, I don't know if
8 we're looking at the same thing, but I asked, "Is the
9 climate changing," and then he said, "The climate is
10 indeed changing and it will change, yes. That's my
11 scientific opinion."
12 THE COURT: Exactly. He just said that.
13 MR. VUJASINOVIC: No, no. He just said he
14 had no opinion.
15 Q. Under oath, Mr. Kappel, didn't you just tell
16 the Judge you have no opinion on climate change?
17 MS. HELD: Objection, your Honor.
18 Plaintiffs' counsel is mischaracterizing
19 Mr. Kappel's testimony.
20 THE COURT: Well, I think the next
21 question -- why don't you ask the next question on
22 page 74 that begins on line 3.
23 Q. BY MR. VUJASINOVIC: Mr. Kappel, you were
24 asked, "Does your report count in any way for global
25 warming?"

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1211
Trial
1 And then can you read what you said?

2 Then your answer?
3 THE COURT: Why don't you ask him now.
4 Q. BY MR. VUJASINOVIC: Does -- sir, forget your
5 deposition for now.
6 Does your report account in any way for
7 global warming?
8 A. Can you go ahead and define global warming?
9 Q. You can do that.
10 A. No, I can't.
11 THE COURT: Please.
12 MR. VUJASINOVIC: Well, Judge, that's exactly
13 what --
14 THE COURT: I know. I know.
15 MR. VUJASINOVIC: I'm not an expert on
16 climate change.
17 THE COURT: None of us are in the courtroom I
18 expect.
19 I think the key question here is whether
20 or not -- the Water Control Manual, I think I asked
21 the questions that are relevant to this. Why don't
22 you go ahead, though, and finish off what you have in
23 mind.
24 Q. BY MR. VUJASINOVIC: Well --
25 THE COURT: I mean I could ask a question.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1212
Trial
1 MR. VUJASINOVIC: Go ahead, Judge.

2 THE COURT: Let me just say, does your report
3 take into account in any respect the recent changes
4 climatologically in the Gulf and in the Houston area?
5 THE WITNESS: Yes, it does.
6 THE COURT: To what extent and how does it do
7 that?
8 THE WITNESS: It incorporates all the data up
9 to the date of occurrence of the storm, and therefore
10 any changes in climate that have occurred over the
11 last 100 years or so up to the date of the storm are
12 incorporated in the report.
13 THE COURT: You told me that it doesn't
14 weight the data in any respect, it just includes it
15 in your report.
16 THE WITNESS: It is what it is; that's
17 correct. You are correct.
18 THE COURT: Mr. Vujasinovic.
19 Q. BY MR. VUJASINOVIC: I'm done with that.
20 You were asked by counsel about some
21 other gauges in Harris County you used that are not
22 Harris County Flood Control District gauges; is that
23 correct?
24 A. They are designated differently than the type
25 of -- well, the four that you showed me. Different

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1213
Trial
1 designations in the source code, some of which are

2 Harris County Flood Control District I believe.
3 Q. All the other ones are daily; right?
4 A. Sure.
5 Q. Whereas the Flood Control District are
6 hourly?
7 A. No. The other ones that are daily are
8 because when we got the data, only daily data were
9 available at that time, not the hourly data. And
10 then we had to reinvolve them into hourly data at
11 that point.
12 Q. Okay. So it was daily and you adjusted it to
13 your own hourly?
14 A. To the hourly; correct. Yes.
15 Q. But they started off just being daily; right?
16 A. The data we received was just daily; correct.
17 MR. VUJASINOVIC: Finally we move to admit
18 Plaintiffs' Exhibit PDX3, Judge, which is the map
19 with the circles we discussed earlier.
20 MS. HELD: As a demonstrative?
21 MR. VUJASINOVIC: We would like to offer it
22 as an exhibit.
23 THE COURT: Well, you said PDX3, I think it
24 is that. It's not in evidence but to illustrate the
25 testimony of the witness.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1214
Trial
1 Mr. Easterby.
2 MR. VUJASINOVIC: We offer PX2001.
3 THE COURT: That is not accepted. It is a
4 demonstrative.
5 MR. VUJASINOVIC: It is a summary of his
6 testimony.
7 THE COURT: Well, it is that. That's why it
8 is a demonstrative.
9 MR. VUJASINOVIC: All right, we offer it as
10 Demonstrative PDX3, Judge.
11 MS. HELD: Since it's just going to be a
12 demonstrative, I have no objections.
13 THE COURT: It is admitted as a
14 demonstrative, PDX3.
15 (Plaintiffs' Exhibit PDX3 was received
16 in evidence.)
17 MR. VUJASINOVIC: That's all I have.
18 THE COURT: Now we go back to Mr. Kappel's
19 report, and I think we covered all the topics
20 exhaustively, to be honest about it. So we're
21 dealing with DX601 and it starts at page 38, and it
22 includes the table on page 36 of 601, though.
23 How far does it go, Ms. Held?
24 MS. HELD: Your Honor, it goes to 222.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1215
Trial
1 Mr. Vujasinovic.
2 MR. VUJASINOVIC: We don't object to
3 Mr. Kappel's report, but we do object to any parts of
4 Dr. Keim's report being included.
5 THE COURT: But Mr. Kappel prepared that, and
6 he testified he personally prepared it. So you have
7 adequate foundation for it.
9 THE COURT: 222 you said, Ms. Held?
11 THE COURT: DX601, insofar as pages 38
12 through 222 is admitted, as is page 36.
13 (Defendants' Exhibit 601, page 36 and
14 pages 38-222 were received in evidence.)
17 And may the Court excuse, Mr. Kappel?
18 THE WITNESS: Thank you, your Honor.
19 THE COURT: Mr. Kappel, thank you very much
20 for your testimony. It's actually quite clear.
21 THE WITNESS: Thank you, sir.
23 May we take our morning break?
24 MR. CHAREST: Yes, your Honor.
25 THE COURT: We're in recess for 15 minutes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1216
Trial
1 LAW CLERK: All rise. Court is now in

2 recess.
3 (Recessed: 10:49 a.m. - 11:04 a.m.)
5 Mr. Charest, where do we go from here?
6 MR. CHAREST: Plaintiffs' are going to call
7 Catherine Popovici, sir, one of the test property
8 Plaintiffs.
9 THE COURT: All right. Yes.
10 Ms. Popovici, if you would stop right
11 there to be sworn as a witness.
12 Would you raise your right hand please,
13 Ms. Popovici.
14 Do you swear or affirm that the
15 testimony you're about to give in this case shall be
16 the truth, the whole truth, and nothing but the truth
17 so help you God?
18 THE WITNESS: I do.
19 THE COURT: Please be seated in the witness
20 stand.
21 Thank you.
22 CATHERINE POPOVICI,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1217
Trial
1 BY MR. CHAREST:
2 Q. Ms. Popovici, you've met Judge Lettow during
3 the site visit.
4 But for the record, please state your
5 name.
6 A. Yes, Katherine Ann Popovici.
7 Q. Okay. And what do you do for a living,
8 ma'am?
9 A. I am the Director of Financial Solutions at
10 BP. I standardize and automate financial process.
11 Q. And do you hold any degrees?
12 A. Yes, I have a bachelor's in economics from
13 Stanford University.
14 I have a MBA from Santa Clara
15 University.
16 THE COURT: From where?
17 THE WITNESS: Santa Clara University in
18 California.
19 And I am a certified public accountant,
20 licensed in the state of Texas.
21 Q. BY MR. CHAREST: Where do you live, ma'am?
22 A. I live in Katy, Texas, at 19927 Parsons Green
23 Court, Katy, Texas 77450.
24 Q. Which county is that?
25 A. Harris County.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1218
Trial
1 Q. How long have you lived there in that home?

2 A. I've lived there almost 16 years.
3 Q. Since roughly 2003 then?
4 A. Yes, we moved there in June of 2003.
5 Q. And were you living at that home during
6 Harvey?
7 A. Yes, we were at Harvey the whole time. We
8 did not evacuate. We were trapped inside the home.
9 Q. You mentioned "we." Are you married, ma'am?
10 A. Yes, I'm married to Alexander Mihai Popovici.
11 M-i-h-a-i.
12 Q. Do you have children, ma'am?
13 A. Yes, we have five children together:
14 Andy who is 33;
15 Michael who is 21;
16 Nico, who is 19;
17 Ann, who is 14 -- 16, sorry;
18 And Max who is 14.
19 Q. Do you own your home at Parsons Green Court?
20 A. Yes, we do. We own the home.
21 Q. Is it your primary residence?
22 A. It's the first and only primary residence
23 we've had.
24 Q. How much did you pay for the home?
25 A. About $440,800.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1219
Trial
1 Q. Describe for the Court, if you would, the

2 home in terms of listing the bedrooms and such.
3 A. It's a five-bedroom, four-bath home with a
4 swimming pool. It's about 6300 square feet.
5 It's really a beautiful home. It was
6 built in 1989, and on a very quiet cul-de-sac. It's
7 zoned to the Katy ISD schools, which are some of the
8 best schools in the area.
9 Q. What subdivision, if any, is it located in?
10 A. It's in the Kelliwood subdivision, and that
11 is the -- the tiny area that we're in is Kelliwood
12 Estates, but that area is part of the Kelliwood
13 subdivision.
14 Q. Does being in a subdivision, if you know,
15 involve any deed restrictions?
16 A. Yes, there are deed restrictions. You can't
17 have a commercial property in there. You can't have
18 a business. It's residential only, and they have
19 rules about what you can do with the exterior of the
20 property to make a consistent look and feel so the
21 neighborhoods look nice.
22 Q. How, if at all, did that character of the
23 neighborhood drive your decision to purchase the
24 place?
25 A. That was a big driver. So just -- it was

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1220
Trial
1 just a quiet, safe cul-de-sac. My kids could walk to

2 school.
3 We moved from California where we lived
4 on a hill with no real yard. We didn't have a front
5 yard, because it was sort of on a canyon in
6 California. The backyard was just dirt.
7 So just having this beautiful property
8 with this big lawn where all my kids could run in it,
9 that was a big attraction.
10 Q. Good.
11 We're going to look at some images of
12 your home and ask you to identify them.
13 Just for the Court's reference, I placed
14 in the clerk's chair, two images, and we'll be
15 talking about those right now, two sets of images.
16 The first that we can put on the, screen
17 please, has been marked as Plaintiffs' 2036-18.
18 Ms. Popovici, do you recognize this
19 neighborhood?
20 A. Yes, this is my neighborhood, and you can see
21 my street, Parsons Green Court. It's all covered
22 with water right here in this image.
23 And then the house with the dot on it
24 labeled "Popovici" is my house. So -- and you can
25 see all the floodwaters and to where they extended to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1221
Trial
1 around the neighborhood.

2 MR. CHAREST: Thank you.
3 Your Honor, we offer Plaintiffs'
4 2036-18, which is an image of the NOAA website data,
5 which is already in evidence.
6 MR. CHELLIS: No objection.
7 THE COURT: Mr. Levine, is that --
8 MR. LEVINE: For the record, this is
9 Christopher Chellis.
10 THE COURT: I'm sorry.
11 Say again.
12 MR. CHELLIS: Christopher Chellis.
13 Last name C-h-e-l-l-i-s.
15 Let me just make a note.
16 Thank you, Mr. Chellis.
17 Admitted.
18 (Plaintiffs' Exhibit 2036-18 was
19 received in evidence.)
20 Q. BY MR. CHAREST: Thank you.
21 I skipped a section on my outline, so
22 I'm going to revert a little bit in time and take
23 something out of order.
24 Can you put up Joint Exhibit 0262,
25 please, Matt.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1222
Trial
1 When we talked about your home, ma'am, I

2 meant to ask you questions about this document.
3 Can you tell me what this document is?
4 A. It looks like the deed to my house.
5 Q. Right.
6 And you're familiar with this document?
7 A. Right.
8 I -- I probably signed it almost 16
9 years ago.
10 Q. Thank you.
11 MR. CHAREST: Your Honor, move to admit Joint
12 Exhibit 0262.
13 THE COURT: Mr. Chellis?
15 (Joint Exhibit 0262 was received in
16 evidence.)
17 MR. CHAREST: Great. Thank you.
18 Back to the NOAA website -- NOAA
19 imagines.
20 Please put 3206 on the screen, Matt.
21 Thank you.
22 Q. Ms. Popovici, you identified the neighborhood
23 generally. Can you identify this house specifically
24 that's shown on 2036-19?
25 A. Yes, so where the dot is and the name

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1223
Trial
1 "Popovici," that's my house.

2 MR. CHAREST: Your Honor, we offer 2036-19
3 into evidence.
5 THE COURT: Admitted.
8 Q. BY MR. CHAREST: Why did you decide 15 years
9 ago to purchase the home in Katy, ma'am, in general?
10 A. Well, in general, it was just, you know, a
11 beautiful place to live. I loved the combination of
12 the old growth trees, but the construction was not
13 super old also. So, you know, the house was maybe
14 '89 to 2003, it was about 14, 15 years old.
15 My husband was working very close by.
16 We didn't want a long commute, so he sort of drew a
17 circle and said I want to live in this radius, and
18 that's how I started hunting for a house in that
19 area.
20 THE COURT: Did you agree with that decision?
21 THE WITNESS: Yes, because the idea when we
22 moved into that house was I was going to stop working
23 and live a life of leisure.
24 (Laughter.)
25 THE COURT: How did that work out?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1224
Trial
1 THE WITNESS: Well, I work now, but it turns

2 out I enjoy working, so...
3 Q. BY MR. CHAREST: What expectations, if any,
4 did you have with respect to property value when you
5 purchased the home in 2003?
6 A. We thought the property value would increase.
7 I could see just looking at the area,
8 the schools, Houston was growing. The property
9 values had increased in the past, so I bought the
10 property with the expectation that the value would go
11 up over time.
12 Q. Thank you.
13 And when you bought your home in 2003,
14 what awareness did you have with respect to Harris
15 County generally, Fort Bend County, and flooding in
16 the general area, not specifically your neighborhood?
17 A. So the area is as flat as a pancake, so, you
18 know, I knew very generally about flooding, and --
19 but I didn't know anything specific about flooding,
20 so I just -- it's Houston. It rains. It does -- it
21 can flood.
22 Q. As compared to your canyon-side home in
23 California?
24 A. Right.
25 There I was much more concerned about

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1225
Trial
1 earthquakes, actually.
2 Q. Fair enough.
3 When you went to acquire the home within
4 the radius that you talked about, did you think about
5 whether or not that particular area had flooded? Was
6 that something that you were thinking about asking?
7 A. No, I -- I did not get any information from
8 my real estate agent that that area was a flood risk.
9 I looked at my appraisal, and it says zone X in terms
10 of what kind of, you know, flood risk are you in, is
11 it a 100-year, 500-year or X, not anything. So
12 nothing struck me as a significant flood issue for
13 this property.
14 Q. And you did undertake that evaluation before
15 you purchased the home; correct?
16 A. Yes, we got an appraisal and just that kind
17 of activity.
18 Q. And over the lifetime -- well, lifetime.
19 Over the 15, 16 years that you did live
20 in your home, had you ever experienced any flooding
21 events whatsoever?
22 A. No, my property had never flooded before, so
23 when I bought the home, not only did I have the
24 appraisal, but I had the seller's disclosure
25 checklist, and it says, has the house ever flooded

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1226
Trial
1 before, has the property ever flooded before, and

2 both boxes were checked no. And then since I bought
3 the house, that property had never flooded before.
4 Q. And was that information of import to you at
5 all, the fact that it had not flooded when you went
6 to buy the house?
7 A. Well, if the property had ever flooded, I
8 would not have bought the house, you know. Why would
9 I do that?
10 Q. Right.
11 And so before Harvey, had you ever seen
12 storm water even rise above the curb in your
13 neighborhood?
14 A. No. No.
15 Q. Did you carry flood insurance on your
16 property?
17 A. Yes, I do carry flood insurance.
18 Q. Why, despite having checked the likelihood or
19 not of flooding, did you still carry flood insurance?
20 A. Well, I'm a risk-averse person, first of all.
21 Flood insurance was only about $4- to $500 depending
22 on the year, so it seemed inexpensive relative to the
23 risk, and also having come from another state, I
24 observed that Houston was very flat, so flooding
25 could occur.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1227
Trial
1 Q. When did you first learn that your home was

2 within the Barker Reservoir?
3 A. After Hurricane Harvey.
4 Q. If you had known that your home was inside
5 the Barker Reservoir, how would that have affected
6 your decision to buy the home?
7 A. We would not have purchased the home.
8 Q. When did you first learn that the government
9 would use your house to store storm water runoff as a
10 part of its operation of the Barker Reservoir and
11 dams?
12 A. After Hurricane Harvey.
13 Q. And if you had known that before you bought
14 your home, what would you have done about it?
15 A. We would not have purchased the home.
16 Q. What, if anything, did you know about either
17 the Addicks or Barker Reservoirs before you purchased
18 your home?
19 A. I didn't know anything. I was coming in from
20 California. We made two visits, one in February and
21 one in April, to look for homes, and I loved the
22 area. I didn't have any familiarity with the
23 reservoir or anything like that. I wasn't even aware
24 of that Barker park's proximity to our house. That
25 just wasn't my focus.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1228
Trial
1 Q. You've seen the signs for Addicks and Barker

2 in and around the actual government-owned land
3 property lines; correct?
4 A. Right.
5 So there is a sign that indicates Barker
6 Reservoir. It's probably five to six miles away from
7 my house, and it's close to the dam.
8 Q. And when you're looking at that sign and
9 seeing the green space in front of you, what was your
10 impression of what that sign depicted?
11 A. So, again, because that sign is close to the
12 dam, as you enter Westheimer Parkway, and then you
13 see an area of land which is part of Barker Park but
14 there's nothing there. There are no soccer fields or
15 a gun range or anything like that; it's just the
16 trees. So my assumption is that was what the
17 reservoir was.
18 As you drive further down Westheimer
19 Parkway and closer and closer to Katy, to my home,
20 you have the dog park, the gun range, all the soccer
21 fields, and then after that, you go into the
22 residential area, and neighborhood, after
23 neighborhood, after neighborhood.
24 Q. And where did you think the reservoir ended
25 based on that topography and layout?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1229
Trial
1 A. Frankly, before Harvey, I never gave any

2 thought to where the reservoir ended.
3 I assume it ended, you know, where
4 the -- probably where the gun range starts, because
5 that's the first set of -- kind of structures or
6 public area where people can be.
7 Now, today, I know that actually the
8 entire park and all the residential neighborhoods
9 behind it are part of the reservoir.
10 Q. When did you learn that, ma'am?
11 A. After Harvey.
12 Q. And if you would known that, would you have
13 bought your home?
14 A. No. No, we looked at similar-sized homes
15 with similar floor plans further to the west of my
16 home, similar prices. I could have bought one of
17 those homes.
18 The reason why I preferred this home is
19 because my children would not have to cross a busy
20 street called Fry Road. They can walk to the
21 elementary school. If we had bought the exact same
22 home, same floor plan on the other side of the
23 street, which would have been safer because it's out
24 of the reservoir, then my kids would have had to
25 cross a busy street.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1230
Trial
1 Q. You would have taken that trade any day;

2 yeah?
3 A. Yes.
4 Q. Did the government ever ask permission to
5 store storm water in your home?
6 A. No.
7 Q. Did the government have a flowage easement
8 over your property?
9 A. No.
10 Q. Did you get any deals for price reduction for
11 your home during the acquisition because of its
12 proximity to Barker dam?
13 A. No.
14 Q. Did you know that the government did a first
15 floor elevation survey of your home in 2003 or '4?
16 A. No.
17 Q. Are you aware that the government actually
18 had a detailed map showing that your house was one of
19 thousands that the government planned to occupy with
20 impounded floodwaters?
21 A. No.
22 Q. Ma'am, where were you when Hurricane Harvey
23 hit the coast and traveled up over to Houston?
24 A. I was inside my home.
25 Q. What was -- what drove the decision to stay

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1231
Trial
1 in your home?
2 A. Well, this was not necessarily a mutual
3 decision. In the beginning when we thought it was
4 just a hurricane, we stayed and did those kind of
5 preparations. But -- so that's before the storm
6 right; right?
7 And then once the storm -- the storm
8 kind of passed, and there was a moment where we
9 thought we could leave. August 29th was my mother's
10 75th birthday, so there were a lot of reasons to
11 leave, but ultimately, we decided not to evacuate.
12 By the 29th, we couldn't drive out of our
13 neighborhood, so.
14 My husband did not want to evacuate.
15 When you evacuate, you have to turn off all of your
16 power, and in Houston, that is pretty much the death
17 of your house because of the mold and mildew.
18 There's also a mosquito issue if you have all this
19 standing water. He's from a communist country, and
20 so he feels very strongly about protecting his house,
21 and so he did not want to evacuate.
22 Q. Who else was there with you? You mentioned
23 your husband. Who else was there in the house with
24 you?
25 A. We had three children there, Michael, Ann,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1232
Trial
1 and Max, and Michael's college friend.

2 Q. Please show us Popovici 25.
3 A. Oh, so this is a picture that I took. I'm
4 standing on my front step looking out at my street.
5 I took this on August 27th, 2017, at 10:20 p.m. with
6 my cell phone.
7 And what I'm looking at, this is -- this
8 is after the storm itself has passed, and what was
9 so -- and the light that you see, that's my neighbor
10 across the street.
11 And these are pretty wide streets, as
12 you saw, your Honor.
13 What was shocking about this photo was
14 the water had come up over my curb, and it's up my
15 lawn. It's probably up -- maybe halfway up my lawn,
16 and it's also up part of the way on my neighbor's
17 lawn. So this -- I had never seen this before, and,
18 you know, I'm extremely alarmed, because by now, most
19 of the rain had stopped.
20 As you can see, it's not actively
21 raining at this time, so it was a very alarming
22 moment.
23 MR. CHAREST: Move to admit Popovici 25.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1233
Trial
1 (Popovici Exhibit 25 was received in

2 evidence.)
3 THE COURT: Thank you, Mr. Chellis.
4 Q. BY MR. CHAREST: Did the water keep rising at
5 that moment after August 27th?
6 A. No. Actually, the water went down the next
7 day.
8 Q. Please show us Popovici 52.
9 A. So this is taken the next day towards the
10 evening, August 28th, 2017, 7:00 in the evening.
11 I'm standing on my lawn taking this
12 picture with my cell phone. This was so interesting,
13 because you see that the water has receded. It's off
14 my lawn. You can even see across the street, my
15 neighbor's -- bits of their curb, so the water has
16 gone all the way down.
17 This is my husband walking on the street
18 in his wading boots and fishing gear, and you can
19 actually see his feet. He's in the middle of the
20 street, because that's the highest point. But, I
21 mean, that just tells you how far the water has
22 receded, you know.
23 At that time I thought, well, maybe the
24 lawn, you know, has absorbed all the water or
25 something like that. I didn't quite understand all

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1234
Trial
1 the mechanics of why the water was moving around.

2 MR. CHAREST: I would offer Popovici 52 for
3 the record.
5 THE COURT: Thank you, Mr. Chellis.
6 Admitted.
8 evidence.)
9 Q. BY MR. CHAREST: At that point, what did you
10 expect was going to happen with respect to the
11 probability of flooding as a result of the rainfall
12 event that was Harvey?
13 A. I had a very difficult time understanding
14 what was happening. We were getting snippets of news
15 and -- you know, when the power was working -- social
16 media, stuff like this.
17 On August 28th, for example, the water
18 went out, and so we were just trying to figure out
19 what to do. I was hearing about flooding. I think
20 around that time Harris County published a map with
21 elevations of every house. It wasn't a clear and
22 easy-to-read map, because I'm reading it on my cell
23 phone. So we were warned that there could be
24 flooding in our area.
25 Some people I knew already had flooding

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1235
Trial
1 going on, but I wasn't really sure that we would be

2 flooding.
3 Again, we started talking about
4 evacuation, because at this point, I could drive out
5 of my neighborhood in our four-wheel drive truck, and
6 the next day was my mother's birthday, so, you know,
7 we were having all these discussions, but I -- I
8 don't -- we were not aligned on what -- what we would
9 be doing.
10 Q. Fair enough.
11 Sorry. Show me Popovici 5, please.
12 THE COURT: Interesting discussions.
13 THE WITNESS: Right.
14 So then --
15 Q. BY MR. CHAREST: Let me ask you a question
16 before you start into it. I appreciate that.
17 So we saw the picture of the 27th when
18 your husband was walking maybe an inch or to in the
19 crest of the middle of the road. This picture was
20 taken when?
21 A. So this was taken the next day.
22 In the morning when I woke up, there was
23 water all the way up to my house, so --
24 Q. Let me pause you there for a second.
25 Had it been raining locally, heavily,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1236
Trial
1 during that time?

2 A. During the night I don't know, because I was
3 asleep. During the morning there may have been some
4 scattered showers, but at this time, it was not
5 raining where I was.
6 So this is when I started to really
7 freak out, because I went outside out the side door
8 that we saw to that area, you know, and I took this
9 picture. This is my foundation. You know, this --
10 I'm just kind of pointing to that.
11 The foundation and the driveway meeting
12 the foundation. My house begins at the white -- I
13 don't even know what that is -- it's stuff, and
14 I -- I was in my wading boots or my husband's wading
15 boots, and I grabbed my kid's ruler, and I stuck the
16 ruler down, and I started to measure where the water
17 was up to my house foundation.
18 So you can see my foundation is about
19 8.25 inches high, and the water is from my driveway
20 up that ruler two inches up there, and I took, you
21 know, time, 12:15 p.m., Tuesday, August 29th, because
22 we were hearing that the water was rising, and you
23 can see there's no, like, raindrops or anything at
24 this point. It wasn't raining here.
25 Q. And just to put the Court in mind of where we

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1237
Trial
1 were during the site visit, frame this picture with

2 respect to when you and Judge Lettow were talking at
3 the site visit, ma'am?
4 A. So this is when we had gone right up to my
5 house, and I was bending over and pointing where
6 against my house this is. So if you think about it,
7 I'm not good with estimating the distance of my
8 foundation where my back door is to the street, but
9 I'm going to guess it was, I don't know, a few feet
10 away, or, you know, so it's gone, you know, 40, 50
11 feet, you know, up the curb, up my driveway, and it's
12 at my house.
13 Q. Let's go to the next picture please.
14 Let me just ask this: Was this another
15 picture in the sequence, ma'am, that you took?
16 A. I'm thinking I took one at 2:00 p.m.-ish
17 also, because I was starting to, you know, have a
18 conversation with my husband.
19 Now, of course, we're talking about boat
20 evacuation at this point, because we can no longer
21 drive out of the neighborhood.
22 So I took this photo on Tuesday, August
23 29th, at 4:24, p.m., or I guess this says 4:26 p.m.
24 My phone recorded all the metadata. And at this
25 point the water -- this is my foundation, my driveway

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1238
Trial
1 meeting my foundation. The white line is where my

2 house begins. I've got the same ruler. You can see
3 my earlier mark with the Sharpie down below where
4 it's two inches, and now it's 3-1/2 inches up my
5 foundation, and so this is my hand on the chart.
6 It's not raining at this point. I'm trying to do
7 this calculation as to when my house is going to
8 flood basically. I'm looking at how much the water
9 is rising, and, you know, how much time has elapsed,
10 and I've got my little algorithm in my brain, so it's
11 probably not a sophisticated word, but that's not
12 really what it was in my brain.
13 So, anyway, I'm trying to figure out
14 when we're going to flood. At this point we are
15 rolling up our carpets. We're carrying all of our
16 furniture upstairs.
17 We -- actually, my son, Michael, and his
18 friend, went over to the neighbors' to help them roll
19 up all their stuff and take stuff upstairs. My
20 neighbors did end up evacuating by boat, because
21 they're elderly. They are over 65, and the husband
22 had had a kidney transplant, so it just became
23 dangerous for them to say there.
24 At this point the water had come back
25 on, but we had a boil water order.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1239
Trial
1 Q. Go to the next page, please, ma'am.

2 A. Okay. And so this was later in the day, 6:15
3 p.m., Tuesday, August 29th, 2017. The water has come
4 up to 3.8 inches, so basically it's about 4, 4.25
5 inches from coming into my house.
6 Again, no rain. There's no raindrops or
7 anything, and, again, just part of my calculations
8 trying to figure out when is my house going to flood.
9 You know, the ongoing conversations, do we physically
10 evacuate or not, again not aligned, we ended up
11 staying the whole time.
12 MR. CHAREST: So Popovici 5, your Honor is
13 the three pages in compilation. I move for their
14 admission.
15 MR. CHELLIS: No objection as to those three
16 pictures, but there are others in the volume.
17 MR. CHAREST: That's fine.
18 THE COURT: Those three we have time stamps
19 for them, so that's okay.
20 Admitted.
22 evidence.)
24 Q. Describe for the Court the experience that
25 you had of being trapped inside your property during

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1240
Trial
1 that period.
2 A. Well, so it was a very stressful time in the
3 house and outside of the house. My son's friend had
4 been scheduled to fly back to Utah to be with his
5 family earlier in the week, but because of Harvey
6 that was canceled. The airports weren't open, and
7 then even after Harvey, you know, we were having
8 trouble, you know, trying to get out of the
9 neighborhood.
10 We were having everybody carry
11 everything upstairs. We had prepared a kitchen
12 upstairs, and because we were preparing basically for
13 the downstairs to flood. We were boiling water
14 constantly.
15 We were also checking on our neighbors.
16 Most of our neighbors evacuated because they either
17 had very small children or had medical conditions.
18 We didn't want to -- we were all very healthy, so we
19 didn't want to take up the attention of the first
20 responders to save that for people who needed it, but
21 it was a pretty tense time.
22 We were also really concerned, or I was
23 very concerned about the floodwater, because at this
24 point, the floodwater started to change from kind of
25 more clear-looking the way it was, you know, earlier

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1241
Trial
1 when my husband was walking up the street -- the

2 water looked pretty clear in the earlier photo, but
3 by now, the water started to look very dirty. It
4 became opaque. There was all this particulate in the
5 water. It had a smell like kind of, you know,
6 fecal/dead animal/chemical-type smell, and we started
7 hearing reports, you're actually not supposed to let
8 your skin come into contact with the floodwater. Of
9 course, initially my kids were not attentive to that
10 kind of, you know, being careful, but we started to
11 get concerned about the safety of the water.
12 Q. Please show Popovici 33.
13 Ma'am, describe that picture for the
14 Court.
15 A. Right.
16 So this is a couple of days later on
17 September 1st, 2017, at 7:58 in the morning. I took
18 this picture, and I took this picture -- I'm not on
19 my front step. I'm further up the lawn, but you can
20 see that the water has receded a great deal.
21 You can see, you know, probably, you
22 know, I would say two-thirds of my lawn at this
23 point, and the lawn -- the water has come down off of
24 my neighbor's area.
25 At this time we still could not drive

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1242
Trial
1 out of the neighborhood at this time of the day.

2 Q. Do you know how long the storm water occupied
3 your property for, ma'am?
4 A. I don't know exactly, but later -- on this
5 evening, on September 1st, it was probably four,
6 five, six days. I don't know exactly how long every
7 little bit was on my property. In fact, probably
8 it's still on my property today, because it's sunk
9 into the yard, but anyway we were able to drive out
10 late September 1st. My husband and sons got into the
11 four-wheel drive truck and were able to drive out of
12 the neighborhood.
13 Q. What damage to your structure, without
14 quantifying, occurred as a result of this? Your
15 structure, not the property around your structure.
16 A. We did not get any floodwater into our house,
17 thankfully, because I know a lot of people who
18 experienced that and that was very traumatic.
19 My mother has a rental property that
20 flooded, so that is a horrible experience to go
21 through.
22 We -- we did have to pressure wash our
23 driveway, because we had all that, you know, toxic
24 gunk on it. There is, I'm sure, still toxic stuff in
25 my property.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1243
Trial
1 We had some wood beams connected to the

2 garage that are warping. You know, we haven't really
3 repaired all that.
4 Q. Were you able to use your home in the normal
5 and customary manner during Harvey?
6 A. No, not at all.
7 So we couldn't enter or exit the
8 property. I couldn't get to my mother's, you know,
9 for her birthday.
10 We -- we couldn't play in the yard or on
11 the lawn. I mean, normally over the years my kids
12 have, you know, thrown a football to each other. We
13 have a basketball hoop in the driveway. You know, my
14 kids could -- could -- I've told you how they used to
15 play on the slip-and-side on the lawn and stuff like
16 that. So we could not use our property in the normal
17 and customary manner.
18 Q. Tell the Court just in general what you
19 understand the nature of your claim is here that
20 we've asserted under this Fifth Amendment.
21 A. Right, so I'm not a historian, I just have a
22 high school understanding of the Fifth Amendment, but
23 basically that the government cannot take your
24 property without just compensation.
25 Q. And what did the government take from you

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1244
Trial
1 when it stored property on your water -- when it

2 stored water on your property; ma'am?
3 A. Well, it took from me my peace of mind, the
4 safety of my property. Again, I don't think my, you
5 know, granddaughters are going to run around in the
6 yard the way that my kids had been able to.
7 I love to garden. I have to take
8 special precautions in the yard.
9 You know, I think that's what they took
10 from me.
11 Q. Did the government take away your means of
12 egress and ingress to your home and property?
13 A. Yes, we -- we could not get on and off the
14 property without a boat or special clothing.
15 We couldn't drive the car.
16 Of course, it took -- so even though we
17 were able to exit with a four-wheel drive truck on
18 September 1st, we couldn't drive out with our sedan
19 for several days.
20 Q. Were you able to exclude the government storm
21 water from your property?
22 A. No.
23 Q. And did anyone ever ask you for permission to
24 put that water on your property?
25 A. No.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1245
Trial
1 Q. Do you understand why the government stored

2 the water on your property?
3 A. Yes, I do understand.
4 Q. Describe for the Court your understanding of
5 that, ma'am.
6 A. So my understanding today is that my property
7 is actually inside a reservoir, and that the intent,
8 at some point in history, was that this land was
9 going to be used to hold water on the west side of
10 the dam to protect the downtown city of Houston, so.
11 But that was not my understanding when I bought the
12 property at any time before Harvey happened. In
13 fact, I bought another -- I bought a rental just
14 about a mile away in another subdivision that's also
15 near the reservoir.
16 Q. Would you have bought your location if you
17 knew everything you knew now back in 2003?
18 A. No. No. We had -- we had options to buy
19 other -- another primary residence, which was
20 substantially the same, you know, as this one, just a
21 mile or two away. So we could have bought another
22 property had I known the location of this property.
23 Q. Do you have any plans to sell your property
24 on Parsons Green Court, ma'am?
25 A. We have a lot of memories there. I mean my

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1246
Trial
1 kids grew up there. I have one son that is a Texan.

2 He was born in Texas. It's -- I don't know. It's
3 very hard to think about this.
4 Q. If and when you do sell your property, those
5 disclosures that you looked at, as the buyer, what,
6 in fact, will these events have on your disclosures
7 and those potential sales?
8 A. So, in the seller's disclosure that I will
9 have to make, I will have to check the box to say
10 that my property has flooded before, and I will have
11 to explain that, so likely I'll have to explain that
12 my property is inside the reservoir.
13 MR. CHAREST: Thank you, ma'am.
14 Your Honor, move to admit Popovici 33
15 which I neglected to do before when it was on the
16 screen.
21 evidence.)
22 MR. CHAREST: Pass the witness.
23 MR. CHELLIS: Good morning, Mrs. Popovici.
24 Good morning, your Honor.
25 THE WITNESS: Good morning.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1247
Trial
1 MR. CHELLIS: Before I begin, I didn't want

2 to point out that ECF-211 has joint stipulations and
3 those include facts pertaining to Ms. Popovici's
4 property on pages 6 and 7, paragraphs 37 through 42.
5 CROSS-EXAMINATION
6 BY MR. CHELLIS:
7 Q. Let's pull up DX837.
9 Q. Now, Ms. Popovici, you pointed out the
10 location of your property on a photo before with
11 Mr. Charest?
12 A. Yes.
13 Q. Does that map also show the location of your
14 property on 19927 Parsons Green Court?
15 A. Yes, it does.
16 MR. CHELLIS: Your Honor, we move to admit
17 DX837.
18 MR. CHAREST: No objection.
20 (Defendants' Exhibit 837 was received in
21 evidence.)
22 Q. BY MR. CHELLIS: If you pull open your
23 notebook, you will find DX838?
24 A. Yes, I see that.
25 Q. It's also up on the screen.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1248
Trial
1 Does that map also accurately show the

2 location of your property on Parsons Green Court?
3 A. Yes, it does.
5 DX838.
9 evidence.)
10 Q. BY MR. CHELLIS: Now, before you closed on
11 the purchase of your home in 2003, there was an
12 appraisal done on your property; correct?
13 A. Yes.
14 Q. Let's turn to Joint Exhibit 65.
15 Ms. Popovici, do you recognize this
16 exhibit as a copy of the appraisal of your property
17 as of May 8th, 2003?
18 A. Yes.
20 Joint Exhibit 65.
24 evidence.)
25 Q. BY MR. CHELLIS: Isn't it true that when you

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1249
Trial
1 purchased flood insurance in 2003 that -- isn't it

2 true that you purchased flood insurance in 2003 for
3 your home at Parsons Green Court?
4 A. Yes, we were not required to, but we did
5 purchase it.
6 Q. Isn't it also true that in determining to
7 purchase -- whether to purchase flood insurance, that
8 you also reviewed a local area flood map?
9 A. I -- I likely did review a map. I can't
10 remember any details of that.
11 Q. Do you remember the United States asking you
12 in writing to identify documents you reviewed or
13 other steps that you took in determining whether to
14 obtain flood insurance?
15 A. Yes.
16 Q. And do you remember what your answer was?
17 A. That I likely reviewed it. I don't think I
18 could recall exactly what I reviewed at that time.
19 Q. Let's turn to Joint Exhibit 240.
21 Q. Do you recognize this as a copy of your flood
22 insurance policy for the period June 13th, 2017, to
23 June 13th, 2018?
24 A. Yes, I do.
25 Q. And that would be the policy during Harvey;

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1250
Trial
1 correct?
2 A. Correct.
3 MR. CHELLIS: Your Honor, the United States
4 moves to admit Joint Exhibit 240.
8 evidence.)
9 Q. BY MR. CHELLIS: Now, you testified earlier
10 that your property had never experienced flooding
11 prior to Harvey; correct?
12 A. Correct.
13 Q. And you also testified that there were no
14 floodwaters in your home during Harvey; correct?
15 A. Correct.
16 Q. So there was no damage to the interior of
17 your home as a result of the flooding from Harvey;
18 correct?
19 A. No, so we had -- so -- okay.
20 It depends what you mean by flooding,
21 for example. The kind of flooding that you
22 anticipate when you buy insurance is leaves clogging
23 a drain in your pool area or something like that,
24 where water can back up, not reservoir flooding, for
25 example.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1251
Trial
1 Q. So there was no damage to the interior of

2 your home from independent floodwater from Harvey.
3 A. I would say --
4 MR. CHAREST: Objection on that.
5 THE COURT: Just a moment.
6 Mr. Charest.
7 MR. CHAREST: I don't understand the
8 question. I'm not sure the witness understands the
9 question.
10 What does he mean by independent water?
11 THE WITNESS: Yeah, so -- so we have --
12 THE COURT: I'm sorry, Ms. Popovici.
13 Just a moment.
14 Would you reframe the question,
15 Mr. Chellis?
16 MR. CHELLIS: Yes, your Honor.
17 Q. So, the interior of your home didn't
18 experience any damage from floodwater from Harvey;
19 correct?
20 A. Reservoir floodwater, no.
21 Q. You mentioned that you had a pool in your
22 backyard; correct?
23 A. Correct.
24 Q. Was there any damage to that pool from
25 flooding from Harvey?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1252
Trial
1 A. No.
2 Q. You also had an air conditioning unit on the
3 outside of your home. Was there any damage from
4 flooding to that?
5 A. No, the electronics are on top of the air
6 conditioning, the air conditioning worked when the
7 power was on.
8 Q. You also testified earlier and at the site
9 visit on Wednesday that you and your family stayed in
10 your home during Harvey; correct?
11 A. Yes.
12 Q. And you have not made a claim under your
13 flood insurance policy for damages related to
14 flooding from Harvey; correct?
15 A. Correct.
16 MR. CHELLIS: No further questions.
19 Mr. Charest.
20 MR. CHAREST: No questions, your Honor.
21 Thank you.
22 THE COURT: May the Court excuse
23 Ms. Popovici?
24 MR. CHAREST: Yes.
25 THE COURT: Thank you very much,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1253
Trial
1 Mrs. Popovici. And thank you for coming and thank

2 you for the site visit and coming this morning.
4 MR. EASTERBY: Your Honor, Plaintiffs would
5 like to call Kurt Buchanan at this time.
7 Thank you, Mr. Easterby.
8 Is Mr. Buchanan in the courtroom?
9 MR. EASTERBY: He will be.
10 UNIDENTIFIED SPEAKER: My apologies. He's
11 still downstairs. I'll go get him right now.
12 THE COURT: If you would, please.
13 Thank you.
14 Mr. Buchanan, just stop right there.
15 If you will raise your right hand to be
16 sworn as a witness.
17 Mr. Buchanan, do you swear or affirm
18 that the testimony you shall give at this trial shall
19 be the truth, the whole truth, and nothing but the
20 truth so help you God?
22 THE COURT: Please take a seat in the witness
23 stand. Once you get there, state your full name for
24 the record. That would be appreciated.
25 THE WITNESS: My name is Kurt Lee Buchanan.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1254
Trial
1 KURT LEE BUCHANAN,

5 BY MR. EASTERBY:
6 Q. Good morning, Mr. Buchanan.
7 We met at your deposition last year. Do
8 you remember that?
9 A. Yes, sir.
10 Q. Is this your first trip to Houston?
11 A. Yes, sir.
12 Q. Welcome to Houston. I apologize for the
13 weather.
14 Could you kindly tell the Court what you
15 do for a living?
16 A. Sir, I'm an economist with the Corps of
17 Engineers in Huntington, West Virginia.
18 Q. And are you with an outfit called Modeling,
19 Mapping and Consequences, Mandatory Center of
20 Expertise?
21 A. Yes, sir.
22 Q. And could you kindly and briefly explain what
23 does MMC do for the Corps of Engineers?
24 A. It's a group of -- we have three branches.
25 There's a hydraulic modeling branch that -- they do

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1255
Trial
1 hydraulic models to estimate what flow would look

2 like, what inundation boundaries would be. We have a
3 consequence group that takes that data and does the
4 economic and life loss analysis on it, and then we
5 have mapping group that actually produces maps.
6 Q. And you're a regional economist?
7 A. Yes, sir.
8 Q. And in connection with this case, referring
9 to the events that occurred in late August of 2017
10 associated with Harvey, did you do come consequences
11 assessments?
12 A. Yes, sir.
13 Q. And you're the technical lead for that; is
14 that right?
15 A. Yes, sir. I'm the technical lead for the
16 consequences branch of the MMC.
17 Q. Are you familiar with a program called
18 HEC-FIA?
19 A. Yes, sir.
20 Q. And, again, if you could very briefly tell
21 us, how do you say that? HEC-FIA?
22 A. We typically refer to it as HEC-FIA.
23 Q. If you tell us very briefly, what is HEC-FIA
24 about? What do they do?
25 A. It's a software program that you bring in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1256
Trial
1 inundation mapping from a hydraulic model, and you

2 bring in a structure inventory that has the types of
3 structures, locations of structures, and you can run
4 simulations to estimate the damages and population at
5 risk and even potential life loss from flood events.
6 Q. And so is the purpose of that to, in some
7 instances, simulate if there was a dam failure, how
8 many structures are destroyed, how many lives lost;
9 yes?
11 Q. And also, when there has been a maximum
12 impoundment or some kind of flooding event resulting
13 from a Corps project, is it also used in those
14 instances to estimate the amount of damage caused?
15 A. Yes.
16 Q. And you prepared, I believe, a total of four
17 consequences analyses associated with the Harvey
18 event?
19 A. That's right.
20 Q. For the Addicks and Barker dams; right?
21 A. Yes, sir.
22 Q. Okay. And when you're putting that
23 information in the HEC-FIA model, are there a number
24 of inputs?
25 A. The two primary inputs would be the hydraulic

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1257
Trial
1 data that we get from the hydraulic modelers, the

2 hydraulic engineers, and the structure inventory
3 data.
4 Q. And is it correct that the hydraulic data was
5 received by MMC from somewhere else?
6 A. It was developed by one of the MMC modeling
7 technical leads, the hydraulic technical leads
8 Russell Wyckoff in Tulsa District.
9 Q. Okay. You're in Huntington, West Virginia;
10 right?
11 A. Yes, sir.
12 Q. What time is your flight today?
13 A. 5:15.
14 Q. Okay. We'll get you out of here.
15 So MMC did not create the underlying
16 hydraulic model; is that right?
17 A. Well, Russell Wyckoff was working at MMC,
18 under the MMC.
19 Q. And once you have the underlying hydraulic
20 information as an economist, what do you do to tell
21 what the damage is going to be to a structure and
22 things like that?
23 A. The main part of the work that we would do is
24 development of structure inventory data, obtaining
25 that, bringing it into the program. We have to

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1258
Trial
1 format it in a way that you can use it in the

2 software, and then we run simulations in the program
3 to determine the damages.
4 Q. Okay. I'd like to hand you what's been
5 marked for identification as Plaintiffs' Exhibit 160,
6 Mr. Buchanan, and 160 is a document entitled Chapter
7 8 Inventory Data, from the HEC-FIA user's manual;
8 correct?
9 A. Yes, sir.
10 Q. You're familiar with this manual, are you
11 not?
12 A. Yes, sir.
13 MR. EASTERBY: We move to admit Plaintiffs'
14 Exhibit 160.
15 MR. DAIN: No objection.
16 (Plaintiffs' Exhibit 160 was received in
17 evidence.)
18 THE COURT: And you are?
19 If counsel for the government could give
20 the name, please.
21 MR. DAIN: Yes, sir.
22 David Dain, D-a-i-n.
23 THE COURT: D-a-i-n.
24 MR. DAIN: D-a-i-n.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1259
Trial
1 Q. BY MR. EASTERBY: Okay. So you talk about

2 getting a structure inventory with regard to the
3 consequences evaluations you created for the Harvey
4 event. Where did you get your structures inventory
5 data from?
6 A. When we first received the request, I did
7 some research to try and find the best available data
8 that I could in a limited amount of time, and I ended
9 up finding a data source on a Massachusetts
10 Institutes of Technology website that had a
11 structure -- it had building footprint data and tax
12 parcel data from 2003, and that was the source I
13 ended up using.
14 Q. Right.
15 So that appraisal district information
16 is one of the inputs that HEC-FIA uses; correct?
17 A. Typically there will be a -- you have to do
18 some work, formatting work, to get between what you
19 normally have as appraisal data and what we can put
20 in the program.
21 Q. Right.
22 But typically -- so in this case -- and
23 I understand you got, I think, a request on August
24 28th to put this together in a big hurry; right?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1260
Trial
1 Q. And when we took your deposition, I think we

2 established you didn't have time to do quality
3 assurance on these reports that you issued; is that
4 right?
5 A. No, sir.
6 Q. So what you used was something you got off
7 the MIT website, which was from 2003; correct?
8 A. Yes, sir.
9 Q. And that would have included appraisal
10 district values of the structures at that time;
11 right?
12 A. Yes, sir.
13 Q. So you're looking at values that were about
14 15 years old; correct?
15 A. Yes, sir.
16 Q. And is it correct that HEC-FIA will actually
17 try to tell you or project the amount of damage to
18 that structure based on how much water and the value?
19 A. Yes, sir.
20 Q. So, obviously, if the value is lower than it
21 should be, you're going to get an artificially low
22 number?
23 A. Yes, sir.
24 Q. And I believe that when you did this, you
25 were not aware that a large portion of what's behind

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1261
Trial
1 the Barker Reservoir is in Fort Bend County; true?

2 A. That is true, sir.
3 Q. So those consequences assessment reports that
4 you created totally excluded Fort Bend County;
5 correct?
6 A. Yes, sir.
7 Q. Mr. Buchanan, do you know if FEMA uses these
8 consequences reports in assessing how much aid
9 they're going to give out to folks?
10 MR. DAIN: Objection; foundation.
11 MR. EASTERBY: That was a foundational
12 question.
13 THE COURT: Mr. Dain?
14 MR. DAIN: I'll accept that statement from
15 counsel as a foundational question.
17 Go ahead, Mr. Buchanan, you may answer.
18 THE WITNESS: I -- are you speaking
19 specifically of the reports that I did or just
20 similar types of reports?
21 Q. BY MR. EASTERBY: Well, let's start with the
22 reports you did.
23 A. I do not know that they were used by FEMA,
24 not to my knowledge.
25 Q. Okay. Sorry to interrupt.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1262
Trial
1 Reports like the ones you did, do you

2 know if FEMA relies on those in meting out the aid
3 they are going to give to folks?
4 A. I do not know that they were around. I've
5 seen tables that had similar numbers on other flood
6 events.
7 Q. So is one of the purposes of HEC-FIA to
8 estimate how much water is in a structure?
9 A. How much water would be estimated by the
10 hydraulic engineering software models, so HEC-FIA
11 basically takes that water from the hydraulic models
12 and then estimates the damage based on the depth.
13 Q. And so if you look at 160, we talk about the
14 structure inventory and there's a tag there for
15 structure ID, and I believe that's just a unique
16 number that you all will assign to each parcel; is
17 that right?
18 A. Yes, sir.
19 Q. And then under damage category, I think you
20 said there is residential, commercial, industrial,
21 and public; right?
22 A. Yes, sir.
23 Q. And under occupancy types, I think you said
24 there was 42 different kinds?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1263
Trial
1 Q. Some will be first -- a one-story house on a

2 slab; right?
3 A. That's correct, sir.
4 Q. Two-story house on a slab?
5 A. Yes.
6 Q. You might have a multi-unit apartment
7 complex?
8 A. Yes, sir.
9 Q. You've got commercial?
10 A. Yes, sir.
11 Q. And vehicles?
12 A. Vehicles would be a value that could -- it
13 could be a value that could be on any structure type.
14 Q. Okay. Let me hand you what's been marked as
15 Plaintiffs' Exhibit 659.
17 Q. 659 is a U.S. Army Corps of Engineers
18 document entitled Appendix E-1. It's got a lot of
19 words. It's dated October 2018.
20 Are you familiar at all with that
21 document, Mr. Buchanan?
22 A. No, sir.
23 Q. Look with me, if you would, to the second
24 page. I just want to ask you a couple of
25 foundational questions.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1264
Trial
1 It talks about depth/damage

2 relationships for structures, contents and such. Do
3 you see that?
4 A. Yes, sir.
5 Q. Do you know what the HAZUS -- H-A-Z-U-S --
6 program is?
7 A. Yes, sir.
8 Q. And what is that?
9 A. That is a FEMA program that also has
10 capability to estimate damages to structures.
11 Q. And is it a system where it's based on the
12 depth of the water, and that will give a percent of
13 damage?
14 A. Yes, sir.
15 Q. Is it similar to what we're seeing in what's
16 been marked for identification as 659?
17 A. Yes, sir, very similar.
18 MR. EASTERBY: Okay. Your Honor, we would
19 move to admit Plaintiffs' Exhibit 659.
20 MR. DAIN: Objection; foundation and
21 relevance.
22 THE COURT: The Court accepts that objection.
23 We really can't develop a relationship
24 between the personal knowledge that Mr. Buchanan has
25 and this exhibit or we haven't thus far.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1265
Trial
1 MR. EASTERBY: Well, I thought he just said

2 they're very similar to the --
3 THE COURT: Very similar is not the same
4 thing.
5 MR. EASTERBY: I'll go a little further,
6 then.
7 Q. Does HEC-FIA use the HAZUS program to do its
8 depth damage relationships for structures, contents,
9 and et cetera?
10 A. The HEC-FIA program uses some damage curves
11 from the FEMA HAZUS program, but some of the curves
12 also come from the Corps of Engineers economic
13 guidance.
14 Q. And this document we're looking at is a Corps
15 of Engineers document that's about economic guidance;
16 correct?
17 A. Well, it's not the economic guidance
18 published that has our standard depth damage curves.
19 I don't know if these are the same.
20 Q. Where would we find the depth damage curves
21 that were actually used by MMC?
22 A. I don't know that you can find them in one
23 single source other than within the HEC-FIA software.
24 They are in the HEC-FIA software.
25 Q. So unless you can look into the software,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1266
Trial
1 they are not published anywhere?

2 A. Well, then -- it's pulled from multiple
3 sources, so I don't know that they're all published
4 in any one source.
5 Q. All right. Let me just ask you another
6 general question, Mr. Buchanan: You're familiar with
7 the HAZUS program and the manner in which HEC-FIA
8 does the depth damage relationship; correct?
9 A. Yes.
10 Q. Is it correct even in instances when there
11 has been no structure flooding, that program will
12 generate some damages?
13 A. Could you be more specific as to whether that
14 structure flooding that you -- would be aboveground
15 or above first floor elevation?
16 Q. Well, I mean, let's assume someone's slab is
17 at 101 feet, and the water got up to 100 feet. It is
18 correct under that scenario, your program, HEC-FIA,
19 would generate some damages; yes?
20 A. Yes, I believe it could.
21 Q. Okay. Thank you.
22 Let me hand you what's been marked as
24 And 163 is an August 30th, 2017,
25 consequences evaluation pertaining to Hurricane

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1267
Trial
1 Harvey and the Houston area; yes?

2 A. Yes, sir.
3 Q. You wrote this, or created this?
4 A. Yes, sir.
5 MR. EASTERBY: We move to admit Plaintiffs'
6 Exhibit 163, your Honor.
7 MR. DAIN: Your Honor, we object to
8 relevance.
9 This is a document that was generated
10 quickly. We don't understand what it's being offered
11 to prove.
12 MR. EASTERBY: Substantial interference and
13 damage resulting from the submersion of Plaintiffs'
14 property by the federal government.
15 THE COURT: Mr. Dain, one of the issues in
16 the case in this liability portion of the case has to
17 do with severity. We've already had testimony on
18 severity. Why isn't this relevant to severity?
19 MR. DAIN: Because this document is not
20 generated -- associated with the upstream properties,
21 and it's a forecast that I don't -- I'm not sure what
22 this document is intended to show.
23 We don't doubt the severity issue. We
24 don't doubt that it's very relevant to present
25 evidence about impact, but we're not sure why this is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1268
Trial
1 being offered.
2 MR. EASTERBY: If the United States --
3 THE COURT: Just a moment. Let me think
4 about it for a minute.
5 Why don't you ask Mr. Buchanan several
6 more questions.
7 MR. EASTERBY: Yes, sir.
8 Q. So, Mr. Buchanan, looking at 163, do you see
9 the red line that is surrounding the kind of greater
10 Houston and Fort Bend area?
11 A. Yes, sir.
12 Q. Is that the study area for the consequences
13 evaluation report?
14 A. Yes, sir.
15 Q. Zoom out if you would Matt.
16 Do you see the Addicks Reservoir/Buffalo
17 Bayou and Barker Reservoir/Buffalo Bayou sections?
18 A. Yes, sir.
19 Q. And those pertain to the areas that are
20 behind and upstream of Addicks and Barker up to that
21 red line we just saw; correct?
22 A. Yes, sir.
23 Q. And they reflect the number of structures
24 that were inundated by the pool, according to the
25 program you ran back on August 30th of 2017; yes?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1269
Trial
1 A. Yes, sir.
2 Q. They provide an estimate of direct damages
3 for those structures; yes?
4 A. Yes, sir.
5 MR. EASTERBY: Your Honor, we offer
7 THE COURT: Mr. Dain.
8 MR. DAIN: I still don't think there's the
9 foundation for this document.
10 THE COURT: The Court disagrees.
11 Your objection is overruled.
12 DX163 is admitted.
14 evidence.)
15 MR. EASTERBY: Okay. Thank you.
16 Q. Mr. Buchanan, it says here that the estimate
17 back on August 30th was in the Addicks Reservoir
18 area, 2,534 structures were submerged; correct?
19 A. Yes, sir.
20 Q. And it indicates that the total direct
21 damages from that were $192 million.
22 A. Yes, sir.
23 Q. And for Barker it says only 691 structures
24 were submerged; correct?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1270
Trial
1 Q. And $96 million and change; right?

2 A. Yes, sir.
3 Q. And so the roughly 3,000 structures in Fort
4 Bend that were submerged were excluded from this
5 because the parcel data that you got didn't have Fort
6 Bend County in it; right?
7 A. Yes, sir.
8 Q. Okay. And these direct damages would be
9 coming from that HAZUS depth duration table; yes?
10 A. The depth damage table; yes, sir.
11 Q. Depth damage.
12 Is it fair to say that having accurate
13 first floor elevation information for each one of
14 those parcels would be very helpful in coming up with
15 an accurate consequences evaluation?
16 A. For the purposes that we were trying to do, I
17 do not think that having that much accuracy on the
18 foundation on it would make a significant difference.
19 Q. Well, isn't the HAZUS program really based on
20 how much water you have in your house or your
21 structure?
22 A. Yes, sir.
23 Q. So, let's say, you know what the pool
24 elevation is; right?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1271
Trial
1 Q. And you know the first floor elevation;

2 right?
3 A. Yes, sir.
4 Q. You subtract the two and you know how much
5 water is in the house; right?
6 A. Yes, sir.
7 Q. So wouldn't having an accurate first floor
8 elevation be really helpful in coming up with an
9 accurate number of structures flooded and what the
10 damages were?
11 A. Yes, sir.
12 Q. And it's correct that the Galveston Districts
13 did not ever supply MMC with the first floor
14 elevations of all the homes that had been submerged
15 during Harvey; true?
16 A. To my knowledge, that would be true. I was
17 never provided that.
18 Q. Correct.
19 And so you guys just kind of estimate
20 those first floor elevations; right?
21 A. Yes, sir.
22 Q. Okay. So let me hand you what's been marked
23 as Plaintiffs' Exhibit 164.
24 164 is a September 6th, 2017,
25 consequences evaluation pertaining to Hurricane

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1272
Trial
1 Harvey and the Houston area; correct?

2 A. Yes, sir.
3 Q. And you wrote this?
4 A. Yes, sir.
5 MR. EASTERBY: We offer Plaintiffs' Exhibit
6 164, your Honor.
7 MR. DAIN: Same objections.
8 And I'd also like to clarify if I
9 misspoke earlier. What I mean to say is severity is
10 a relevant factor in Arkansas Game & Fish, but,
11 again, we don't think the foundation exists that
12 these documents intend to prove.
13 THE COURT: Mr. Easterby, could we have
14 additional questions with respect to the study.
15 Q. BY MR. EASTERBY: So, Mr. Buchanan, again, we
16 see the study area is the same as the August 30th
17 version.
18 Pull back out a little bit, Matt.
19 Maybe you can look at your copy.
20 There you go.
21 That red line around the greater Houston
22 area.
23 A. Yes, sir.
24 Q. Same study area.
25 This version has a new set of columns on

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1273
Trial
1 the right called natural conditions.

2 Do you see that?
3 A. Yes, sir.
4 Q. I want --
5 There you go, Matt.
6 And Mr. Buchanan, do you recall why it
7 was that the natural conditions column was added to
8 this September 6th iteration of the consequences
9 evaluation report?
10 A. Yes, sir.
11 After the August 30th report, I had -- I
12 didn't work on the project until shortly before this
13 went out. I received another e-mail from Russell
14 Wyckoff who had done the hydraulic modeling that they
15 now had hydraulic modeling outputs for the observed
16 condition and the natural conditions; the observed
17 being what -- what the model showed happened, and the
18 natural being what would have happened had the dams
19 not been in place.
20 Q. All right. Just so we're real clear,
21 "observed actual" means, as is, dam's in place,
22 modeling purporting to depict what occurred during
23 Harvey; right?
25 Q. Natural conditions would be, if you took away

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1274
Trial
1 the dams, had the same inflows, what would that look
2 like; correct?
3 A. Correct.
4 Q. And then you ran that underlying hydraulic
5 data through the HEC-FIA program to generate the same
6 kind of information we saw in the prior exhibit.
7 A. Yes, sir.
8 Q. And this Exhibit 164 is the report that you
9 wrote that puts all that together; yes?
10 A. Yes, sir.
11 MR. EASTERBY: We offer Plaintiffs' Exhibit
12 164 into evidence.
14 MR. DAIN: Same objections, your Honor.
15 I note there is really no foundation as
16 to the modeling for the natural conditions component
17 of this.
18 THE COURT: There is information.
19 I just don't understand these
20 objections, Mr. Dain, at all.
21 You'll have to -- maybe I'm simple
22 minded, but you'll have to explain what in the world
23 you're driving at.
24 MR. DAIN: Well, your Honor, the issue for
25 these from our perspective –

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1275
Trial
1 THE COURT: Sorry, say it again.

2 MR. DAIN: I'm sorry.
3 The issue from our perspective is the
4 preliminary nature of these and the nature of the
5 information that goes in these documents.
6 We understand these are estimates. We
7 understand that Mr. Buchanan performed this work. It
8 was performed in a short period of time, and if
9 anybody is looking at these documents to attempt to
10 establish this is some type of firm estimate from the
11 United States, we think the foundation isn't there
12 for that.
13 THE COURT: Well, that's a different point,
14 but that doesn't go to admissibility, that's goes to
15 the weight that is to be given to the exhibit.
16 MR. DAIN: And I understand that comment.
17 I still think that at some point a
18 foundational point of that kind is sufficient
19 evidence, but I understand your point, your Honor.
20 THE COURT: The Court doesn't ordinarily use
21 an adjective or adverb, but I utterly disagree with
22 that.
23 Mr. Buchanan, in the Court's mind, was
24 given a very difficult job in a very limited time and
25 he did it.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1276
Trial
1 Admitted.
3 evidence.)
4 MR. EASTERBY: Thank you, your Honor.
5 Q. BY MR. EASTERBY: Mr. Buchanan, now that it's
6 been admitted --
7 Matt, can I get you to blow up this
8 column over on the left side.
9 And, Mr. Buchanan, could you kindly read
10 into the record the sentence beginning "Had the
11 Addicks and Barker...."
12 A. "Had the Addicks and Barker Reservoirs not
13 been in existence, same rainfall and inflows would
14 have caused nearly $11 billion in damages and flooded
15 an additional 13,000 structures. This equates to
16 over $2 billion in flood damages prevented by the
17 combined operations of the reservoirs."
18 Q. Okay. So, as I understand it, what that's
19 saying is, if you look at the observed conditions
20 versus the natural conditions, the dams prevented
21 over $2 billion to the area that's protected by them
22 downstream; fair?
23 A. I believe this estimate does also include the
24 upstream.
25 Q. It nets out so --

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1277
Trial
1 A. Yeah.
2 Q. -- the Corps caused damage upstream; it
3 prevented some damage downstream. The net overall
4 benefit was the $2 billion downstream?
5 A. That was what the modeling showed; yes, sir.
6 Q. Okay. So for natural conditions, Addicks
7 Reservoir/Buffalo Bayou, tell us how many structures
8 you see?
9 Matt, pull back out please.
10 Right here.
11 First two -- there you go.
12 A. There are -- on the natural conditions, there
13 were zero structures flooded.
14 Q. That means that according to the hydraulic
15 modeling you received from Russell Wyckoff, a Corps
16 of Engineers employee, zero structures in Addicks
17 would have flooded without the dams being there; yes?
18 A. Yes.
19 Q. And the same is true for Barker; yes?
20 A. Yes, sir.
21 Q. And I think we established in your deposition
22 that because you were under a huge time crunch, this
23 $1.6 million we see on direct damages, natural
24 conditions Barker, was just a mistake; right?
25 A. Yes, sir.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1278
Trial
1 At the time I did not take the time to

2 go in and figure out what was causing that.
3 Q. It's certainly understandable, but it makes
4 sense. If you have zero structures that would have
5 flooded without the dams, there couldn't be any
6 damage to those structures?
7 A. Yes, sir.
8 MR. EASTERBY: Okay. Fair enough.
9 THE COURT: If we're about to shift gears,
10 Mr. Easterby, could we possibly take a lunch break?
11 MR. EASTERBY: I have one more and then I'm
12 done.
13 THE COURT: All right. Let's do it.
14 Q. BY MR. EASTERBY: Let me hand you what's been
15 marked as Plaintiffs' Exhibit 168.
16 And 168 is a map image with a graphic
17 with some red dots, green dots, and pink dots. Do
18 you see that?
19 A. Yes, sir.
20 Q. This is the one that you saw in your
21 deposition?
22 A. Yes, sir.
23 Q. And I believe it's also one that was either
24 generated by MMC or that you were reviewing in this
25 same time period?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1279
Trial
1 A. This was created by me. It was in an Excel

2 file that accompanied the Word document reports.
3 Q. And the purpose of this is to depict
4 structures that had less depth in the existing
5 condition, as opposed to the natural, essentially
6 meaning that Addicks and Barker reduced the peak
7 flooding on those structures; right? One of the
8 purposes?
9 A. Yes, sir.
10 MR. EASTERBY: Your Honor, we move to admit
12 MR. DAIN: No objection, your Honor.
15 evidence.)
16 Q. BY MR. EASTERBY: Okay. So in simple terms,
17 a green dot means that the dams reduced the amount of
18 storm water in those structures; yes?
19 A. Yes, sir.
20 Q. Do you see any green dots behind Addicks and
21 Barker?
22 A. No, sir.
23 MR. EASTERBY: Pass the witness.
24 THE COURT: Now may we take a break?
25 MR. EASTERBY: Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1280
Trial
1 THE COURT: Mr. Dain?

2 MR. DAIN: That would be fine, your Honor.
3 THE COURT: Mr. Buchanan, do you mind taking
4 a luncheon break?
5 THE WITNESS: No, sir.
7 We are in recess for lunch.
8 LAW CLERK: All rise.
9 Court is now in recess.
10 (Recessed: 12:22 p.m. - 1:25 p.m.)
12 May we take just a moment to cover
13 logistical arrangements.
14 MR. CHAREST: Of course.
15 THE COURT: We understood from the chief
16 judge's staff that schools in the Houston area are
17 closed and the state courts are closed just because
18 of the very -- well, quite heavy rains, notable rains
19 last night, especially, and the fact that more are
20 expected tonight.
21 What we propose to do, and we have asked
22 counsel about this, is to close at about 4:15 today,
23 but not take an afternoon break, and to make
24 adjustments by either starting early or going late a
25 couple of days next week.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1281
Trial
1 We'll not do that for the first day,

2 Monday of next week. We propose to start at 9:00 and
3 finish after 5:00 or thereafter.
4 Mr. Charest, is that acceptable?
5 MR. CHAREST: Of course, for the Plaintiffs,
6 yes, sir.
7 THE COURT: Mr. Shapiro.
8 MR. SHAPIRO: Yes, sir.
10 No one could have -- well, I guess a
11 meteorologist could have predicted that, but we
12 couldn't, and we apologize for all of it.
13 MR. CHAREST: Of course.
15 Mr. Buchanan and Mr. Dain.
16 We have to get Mr. Buchanan on his
17 airplane.
18 MR. DAIN: Thank you, your Honor.
19 Just a few questions.
21 BY MR. DAIN:
22 Q. What triggered the involvement of the
23 consequences group in the Harvey event?
24 A. There was an e-mail on August 28th that I
25 received from Robert Winders, who is one of the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1282
Trial
1 hydraulic team leads for the MMC. He was relaying a

2 request, apparently, from the State of Texas for
3 critical infrastructure and consequence information.
4 Q. And what's the difference between critical
5 infrastructure and consequences?
6 A. Critical infrastructure would be hospitals,
7 emergency facilities, things that of nature. That
8 work is typically done by our mapping team at the
9 MMC.
10 And the consequences piece would be more
11 the number of structures flooded, including
12 residential, commercial, and damage estimates from
13 those.
14 Q. Once that was received, who else from the
15 consequences branch assisted in the work to be
16 performed over the next couple weeks?
17 A. No one.
18 Q. Okay. And what was your understanding of the
19 time frame that was requested in order for you to be
20 able to -- for you to start getting responses to your
21 management?
22 A. My understanding was we wanted to get answers
23 as soon as we could, to establish at least a rough
24 order of magnitude of the severity of the flooding.
25 Q. Okay. And, again, the modeling data came

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1283
Trial
1 from where?
2 A. From Russell Wyckoff in Tulsa district, who
3 was one of the hydraulic engineers for the MMC.
4 Q. Okay. Could we just put 164 back up on the
5 screen, please.
6 Do you have 164 in front of you, sir?
7 A. Yes, sir.
8 Q. You talked about this on direct with
9 Mr. Easterby. I just want to revisit it to make sure
10 the record is complete on this.
11 What database did you use to identify
12 and populate the structures for that evaluation?
13 A. It was the 2003 City of Houston data that I
14 obtained from the MIT website.
15 Q. MIT being Massachusetts Institute of
16 Technology?
17 A. Yes, sir.
18 Q. And what are the limitations of that data?
19 MR. EASTERBY: Objection, your Honor.
20 No foundation as to the limitations of
21 the MIT data.
22 THE COURT: The objection is overruled.
23 But, Mr. Buchanan, you may answer of
24 your own personal knowledge.
25 THE WITNESS: It would not have had the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1284
Trial
1 structure -- any developed structures that were built

2 after 2003, and the evaluations would have been in
3 2003 price level.
4 Q. BY MR. DAIN: And did it include the Fort
5 Bend County data?
6 A. It did not.
7 MR. DAIN: I have nothing further, your
8 Honor.
9 THE COURT: Thank you, Mr. Dain.
10 Mr. Easterby.
11 MR. EASTERBY: Your Honor, no further
12 questions.
13 We're done with Mr. Buchanan.
14 THE COURT: Mr. Buchanan, thank you.
15 I think you might have a good chance to
16 make your plane. We'll wish you all the best.
17 And thank you for coming and testifying,
18 and we hope you have a safe trip back.
19 THE WITNESS: Thank you, your Honor.
20 THE COURT: Thank you, indeed.
21 You are excused.
22 Mr. Charest.
23 MR. CHAREST: Our next witness, your Honor --
24 I never thought I'd say this in court -- is
25 breastfeeding at the moment, and we're going to make

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1285
Trial
1 sure she is ready.

2 Give me a moment, please.
3 THE COURT: Remind me how to spell her name.
4 MR. CHAREST: M-i-c-u.
5 We're done, yes.
6 Here we go.
7 THE COURT: Ms. Micu, if you would put your
8 water on the ledge there, please, and then just stop
9 and raise your right hand to be sworn as a witness.
10 Ms. Micu, do you swear or affirm that
11 the testimony you're about to give at this trial
12 shall be the truth, the whole truth, and nothing but
13 the truth so help you God?
16 Thank you.
17 Take a seat in the witness stand.
18 Once you're there, if you would state
19 your full name for the record.
20 THE WITNESS: Christina Michelle Micu.
21 THE COURT: You may proceed.
22 MS. WRIGHT: Thank you.
23 CHRISTINA MICHELLE MICU,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1286
Trial
2 BY MS. WRIGHT:
3 Q. Good afternoon, Ms. Micu.
4 Please tell the Court what do you do for
5 a living.
6 A. I am a real estate investor. I've been doing
7 that since 2014.
8 Q. What does that mean?
9 A. So, I buy houses. I'll fix them up and rent
10 them out.
11 Q. Where do you live?
12 A. Right now I live in Richmond, Texas.
13 Q. Where is Richmond?
14 A. It's about 20 miles south of Katy.
15 Q. How long have you lived there?
16 A. I have lived there for the past about five
17 months.
18 Q. And where did you live before Richmond?
19 A. I lived on 6411 Canyon Park Drive, Katy,
20 Texas 77450.
21 Q. Which county is that?
22 A. It's in Fort Bend County.
23 Q. Is that where you were living during Harvey?
24 A. Yes, I was living there during Harvey.
25 Q. Did your home on Canyon Park Drive flood

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1287
Trial
1 during Harvey?
2 A. Yes, my home on Canyon Park Drive flooded.
3 MS. WRIGHT: Your Honor, may I approach the
4 witness?
5 THE COURT: Yes.
7 Q. How long have you lived in the Houston area,
8 Ms. Micu?
9 A. I've lived in the Houston area about 40
10 years, almost all my life.
11 Q. Are you married?
12 A. Yes, I'm married to Oscar.
13 Q. And do you have any children?
14 A. Yes, I have four children, three of them live
15 with me:
16 Christian is 21.
17 Christina Junior is 17.
18 Federico, F-e-d-e-r-i-c-o, he's 6 years
19 old.
20 Sophie is five months.
21 Q. Let's talk about your home on Canyon Park
22 Drive.
23 Do you own that property?
24 A. Yes, I own it. I still do.
25 Q. When did you purchase it?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1288
Trial
1 A. I bought it in 2012.
2 Q. Was that your primary residence during
3 Harvey?
4 A. Yes, it was my primary. It was a homestead.
5 Q. And you still own that home today?
6 A. Yes, I still own it.
7 Q. If you could please pull out Joint Exhibit
8 107.
9 Do you recognize this document Ms. Micu?
10 A. Yes. Yes, that looks like my deed.
11 Q. Is that the deed to your house on Canyon Park
12 Drive?
13 A. I believe so, yes.
14 MS. WRIGHT: We move to admit JX107.
15 MS. DUNCAN: No objection.
16 THE COURT: Ms. Duncan, just a moment.
17 Admitted.
18 (Joint Exhibit 107 received in
19 evidence.)
20 MS. WRIGHT: Matt, could you pull up Upstream
21 Exhibit 63, please.
22 This has been previously admitted in
23 this case.
24 Q. Ms. Micu, do you recognize this photograph?
25 A. Yes, I do.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1289
Trial
1 That's my house.
2 Q. Did you know that the government took a first
3 floor elevation survey of your home in 2003 or 2004?
4 A. No, I didn't know that they did that to my
5 home.
6 Q. Did you know that they took that photograph
7 during that elevation survey?
8 A. No, I had no idea they took that picture of
9 my home.
10 Q. Did you know that the government actually had
11 a detailed map showing that your house was one of the
12 thousands that they had planned to occupy with
13 inundated floodwater?
14 A. No, I had no idea they made that map. I wish
15 that we would have known.
16 Q. Can you please describe your Canyon Park Home
17 for the Court?
18 A. It's 2,500 square feet, four bedrooms,
19 two-and-a-half baths, corner lot, with a playground
20 in the back and a big yard for my kids.
21 Q. Is it in a subdivision?
22 A. Yes, it is Canyon Gate Cinco Ranch.
23 Q. Do you know whether your property is under a
24 deed restriction?
25 A. Yes, I believe so. It's for a single family

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1290
Trial
1 home.
2 Q. I'm going to show you Plaintiffs' Exhibit
3 2036-12.
4 THE COURT: We just looked at a photograph,
5 DX63; is that it?
6 MS. WRIGHT: Yes, your Honor.
7 It has been previously admitted.
8 THE COURT: I don't have it.
9 It has been?
10 Okay. Thank you.
11 Yes.
12 And the next one?
13 MS. WRIGHT: This is Plaintiffs' Exhibit
14 2036-12.
15 Q. Ms. Micu, this is an image, an aerial image,
16 that was taken by the federal government, by NOAA, on
17 August 30th, 2017. Do you recognize this image?
18 A. Yes, I'm familiar with this image.
19 Q. What is it?
20 A. Well, it looks like it's part of my
21 neighborhood. It's an aerial view of part of the
22 neighborhood. You see the tops of the houses. You
23 see the dirty floodwater all in the streets and the
24 yards.
25 MS. WRIGHT: We move to admit Exhibit 2036-12

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1291
Trial
1 into the record.

6 Q. BY MS. WRIGHT: Let's go to the next slide
7 please. This is 2036-13. Do you recognize this
8 image?
9 A. Yes, I do. That's a more close-up view of my
10 house and the area around it. You see the tops of
11 the houses. You see the tops of trees, and you don't
12 see the yard. You see dirty storm water in the
13 streets and the yards.
15 We move to admit this exhibit.
20 Q. BY MS. WRIGHT: Ms. Micu, why did you decide
21 back in 2012 to purchase a home in Katy?
22 A. I decided to buy the house in Katy because
23 it's known for having good school systems. It
24 occurred to me it was safe. I wanted a place to
25 raise my kids and make a home.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1292
Trial
1 Q. And why did you decide to purchase this

2 particular house on Canyon Park Drive?
3 A. It's in a gated neighborhood. So, again, I
4 felt like it was safe. I could let my kids play
5 outside.
6 And it was going to appreciate in value
7 and that -- and that it was going to just be a good
8 place for me to make a home for my kids.
9 Q. When you say that you thought it would
10 appreciate in value, what do you mean by that?
11 A. After I'd bought it, it had appreciated in
12 value in the years before Harvey happened, so I was
13 thinking that this would be a good investment, good
14 place.
15 Q. When you bought your house, did you know that
16 certain parts of Harris and Fort Bend counties had
17 flooded before?
18 A. I knew that certain low-lying areas in Harris
19 County had flooded, yes.
20 Q. Were you concerned that your property would
21 flood?
22 A. No.
23 Q. Why not?
24 A. I had zero concern that my house would flood
25 because it was not disclosed to me when I was buying

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1293
Trial
1 it, and it never flooded before.

2 Q. How do you know that your property had never
3 flooded before?
4 A. During the process of buying it, nothing had
5 said it ever flooded.
6 Q. Before Harvey, had you ever seen storm water
7 go above the curb in your neighborhood?
8 A. No, before Harvey, I never saw storm water go
9 past the curb.
10 Q. Is your house located in a FEMA flood zone?
11 A. The house is in a 500-year flood zone, so
12 that means I'm not required to buy flood insurance.
13 Q. Have you ever carried flood insurance on your
14 property?
15 A. Before Harvey, no, but I have flood insurance
16 now.
17 Q. Why is that?
18 A. Well, because now I know that they can store
19 storm water on it, and we could flood whenever,
20 whenever it happens, yeah.
21 Q. And who is "they"?
22 A. Well, the government could store storm water
23 on our property.
24 Q. When did you first learn that your home is
25 within Barker Reservoir?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1294
Trial
1 A. I first learned that my home was in Barker

2 Reservoir after Harvey.
3 Q. When did you first learn that the government
4 would use your house to store storm water runoff as
5 part of the operation of Barker Reservoir?
6 A. I first learned that the government would
7 store storm water on my property after Harvey
8 occurred.
9 Q. Before you purchased your property in 2012,
10 what did you know about Addicks and Barker
11 Reservoirs?
12 A. I really didn't know much about the
13 reservoirs.
14 Q. Have you seen a sign for Addicks or Barker?
15 A. No, not that I recall I haven't.
16 Q. Did the government ever ask you for
17 permission to store storm water in your house?
18 A. No, they didn't.
19 Q. Does the government have a flooding easement
20 or flowage easement over your property?
21 A. No, no, they don't.
22 Q. Did you get any deal or price reduction on
23 your home due to its location inside Barker
24 Reservoir?
25 A. No, I paid full price for the house.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1295
Trial
1 Q. Let's look at slide 5, please.

2 There has been testimony in this case
3 regarding the plat of Cinco Ranch Canyon Gate, and
4 that plat has been previously admitted into evidence
5 as Defendants' Exhibit 557.
6 Have you seen this plat before,
7 Ms. Micu?
8 A. No, I saw it after we flooded. I saw it
9 during the course of my deposition, yes.
10 Q. So you first saw the plat after Harvey?
11 A. After Harvey, yes.
12 Q. Did you receive this plat or copy of it in
13 your closing documents when you bought your house?
14 A. No, no, I did not receive that with my
15 closing documents.
16 Q. We have isolated and blown up a portion of
17 this plat, because the font in its original form is
18 too difficult to read.
19 Can you please read for us what it says
20 there?
21 A. It says, "This subdivision is adjacent to the
22 Barker Reservoir and for events greater than the
23 hundred-year flood event, could be subject to
24 extended controlled inundation under the management
25 of the Army Corps of Engineers."

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1296
Trial
1 Q. Do you understand what that language means?

2 A. Not really.
3 I mean, it says we're adjacent to the
4 Barker Reservoir, and now I think it would mean we're
5 in it, but the part about subject to extended
6 controlled inundation, no, I don't exactly know what
7 that means.
8 Q. Let's talk about your experience during
9 Harvey.
10 A. Okay.
11 Q. Where were you when Harvey hit Houston?
12 A. We were in Dallas. We -- I evacuated with my
13 husband, Christina Junior, Federico, and my niece.
14 We were thinking that we were going to go away for
15 the weekend. That, you know, I didn't want to be
16 stuck at the house with no electricity and the kids
17 bothering me, so I said, let's make it a weekend and
18 go to Dallas and stay at a hotel at the water park.
19 I thought we were going to go back home.
20 Q. Did your oldest son, Christian, evacuate with
21 you?
22 A. No, he stayed home. He was scheduled to work
23 that weekend.
24 Q. So he was in your Canyon Park Drive house?
25 A. Yes, yes, he was there.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1297
Trial
1 Q. Let's go to slide 7, please.

2 This is Micu Exhibit 32.
3 Do you recognize that image?
4 A. Yes, I recognize that image.
5 THE COURT: How is it identified, Ms. Wright?
6 MS. WRIGHT: The Bates number is -- excuse
7 me. The exhibit number is Micu 32, and there is a
8 Bates stamp on it as well, Micu000010.
10 Q. BY MS. WRIGHT: Can you please tell the Court
11 what we're looking at, if you know?
12 A. This is a picture Christian took from my
13 driveway looking out towards the street. You see
14 part of the neighbor's house. You see the water
15 going past the sidewalk and into the yards.
16 Q. So this is your front yard?
17 A. The side of it, yes.
18 Q. And do you have the date that Christian took
19 this photo?
20 A. August 28th. He took it before he evacuated.
22 We move to admit this photograph into
23 evidence.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1298
Trial
1 (Micu Exhibit 32 was received in

2 evidence.)
3 Q. BY MS. WRIGHT: Let's look at Exhibit 33,
4 please.
5 What is this photograph of, if you know?
6 A. That's a photograph standing from the front
7 door looking across to the neighbor's house in front
8 of us. That's the water that's already more than
9 halfway up the yard and the neighbors in front of
10 them evacuating on boats.
11 Q. And do you know when this was taken?
12 A. Yes, August 28th around 10:30 a.m.
13 Q. And Christian took this photo as well?
14 A. Yes, he did. He was taking pictures and
15 sending them to us about what was happening.
16 MS. WRIGHT: We move to admit Micu 33 into
17 the record.
21 evidence.)
22 Q. BY MS. WRIGHT: When did you first return
23 home, Ms. Micu?
24 A. Oscar came back around September 1st or 2nd,
25 and I came back about September 5th.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1299
Trial
1 He had to kayak in.

2 Q. Let's look at Micu 35.
3 This is a video.
4 Can you please tell the Court what we're
5 looking at here, if you know?
6 A. This is a video of Oscar, my husband, with
7 our friend. They are kayaking down the street to get
8 to the house. The water is still so high they
9 couldn't drive in, and they couldn't walk in either.
10 And you see how high the water is.
11 Q. Is that your street?
13 Q. Do you know the dates that Oscar kayaked to
14 your house?
15 A. I think it was the September, the 1st of
16 September or the 2nd.
17 MS. WRIGHT: Please describe for the
18 Court -- excuse me.
19 We move to admit Micu 35 into the
20 record.
24 evidence.)
25 Q. BY MS. WRIGHT: Can you please describe what

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1300
Trial
1 you observed when you first returned home on

2 September 5th after Harvey?
3 A. So, I opened the door, and the first thing
4 that I -- that hits me is the smell. It smells like
5 sewage and mold and mildew, and it was so humid.
6 And I looked, and on the floor, you
7 could already see the wood floors warping, mud on the
8 floors, all the furniture moved around, soaked with
9 water. And toys everywhere. You could see the water
10 line. You could see mold growing up the walls.
11 Q. Let's look at Micu 17, please, slide 10.
12 Ms. Micu, what are we looking at here?
13 Do you know?
14 A. We're looking at a part of my kitchen.
15 That's the wall that we used to measure how tall the
16 kids are. That's the cabinets and the water line.
17 And the floor is all covered in mud and dirt.
18 Q. And for the record, when was this photograph
19 taken?
20 A. September 5th.
21 Q. Do you know the depth of storm water in your
22 house?
23 A. It was about two feet.
24 Q. And do you know how long the storm water
25 occupied your home?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1301
Trial
1 A. About 10 days.
2 MS. WRIGHT: We move to admit Micu 17.
3 MS. DUNCAN: No objection to this one page.
4 I understand there are multiple
5 photographs.
7 Just this photograph. Micu 000292 is
8 the Bates number.
11 (Micu Exhibit 17, Bates Micu000292 was
13 Q. BY MS. WRIGHT: Let's go to the next slide,
14 please.
15 Tell us about this photograph, please,
16 if you know.
17 A. That's coming in from the back door. You see
18 there more mud and dirt on the floor and the shoes in
19 disarray and the little cabinet we had that we stored
20 our shoes on. You see the water line.
21 Q. And when was this photograph taken?
22 A. September 5th.
23 MS. WRIGHT: We move to admit Micu 17,
24 specifically Bates number Micu000358 into the record.
25 MS. DUNCAN: No objection to that page.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1302
Trial

4 Q. BY MS. WRIGHT: Let's go to Micu 59.
5 What are we looking at here, if you
6 know?
7 A. Some of the stuff that we had to take out
8 from the first floor. That's the -- we had to take
9 out everything. I mean if it -- we took out all the
10 Sheetrock, insulation, the moisture barrier, we had
11 to take out all plumbing, the bathtub, the shower,
12 the stall, all the tile, the cabinets, and that's
13 just part of the house. We're not even into our
14 stuff yet.
15 Q. Why did you have to remove all of that
16 building material from your house?
17 A. Well, we had to take out everything that had
18 been in the water. If it wasn't in the water, it was
19 next to the water, and you could see the mold on it,
20 and if you don't see the mold, there's probably mold
21 on it, you just don't see it. So we just had to
22 throw it all away.
24 MS. DUNCAN: Our records show that this is
25 Micu 58.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1303
Trial
1 THE COURT: Is it 58 or 59?

2 MS. WRIGHT: One moment, please.
3 I'm sorry.
4 THE COURT: I'm sorry?
5 MS. WRIGHT: Just one moment, please. We're
6 double-checking.
7 I apologize; Ms. Duncan is correct.
8 It's 58.
9 I'm sorry, 59; is that right?
10 MS. DUNCAN: 58.
11 MS. WRIGHT: Sorry. This is Micu 58. The
12 Bates number is Micu000507.
13 We move to admit.
18 Q. BY MS. WRIGHT: Let's go to the next slide,
19 please.
20 Tell us what we are seeing here, if you
21 know.
22 A. That's my stove -- that's my stove and
23 dishwasher. That's part of Federico's bed, some of
24 the screens from the windows, the cabinets, dresser
25 drawers from everything that was taken out of the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1304
Trial
1 bedroom and the kitchen.

2 Q. Were any of your other appliances damaged in
3 this storm?
4 A. Yes, all of them were.
5 The -- it was the refrigerator,
6 dishwasher, washer, dryer, garbage disposal, even the
7 fireplace. We had to take it all out.
8 Q. Did the storm water damage any of your other
9 personal property?
10 A. The storm water damaged the -- my clothes,
11 everybody's -- any clothes that were downstairs,
12 clothes, shoes, toys.
13 Pictures. Pictures that I'm not going
14 to get back of my kids and myself. Heirlooms. An
15 autobiography. Those things that were damaged, I'm
16 not going to get them back.
17 Q. Were you able to replace the things that had
18 been destroyed?
19 A. No. No, you don't replace memories. You
20 don't replace family heirlooms and mementos.
25 evidence.)

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1305
Trial
1 Q. BY MS. WRIGHT: Let's go to Micu 56 please.

2 Tell us about this photo.
3 A. That's the piano that a friend of ours gave
4 us that Federico used to practice on, and those are
5 the doors that we had to take out, dressers, clothes,
6 plastic ware. Whatever was on the first floor, you
7 see it there.
8 Q. How long did it take to repair your home?
9 A. Almost a year.
14 evidence.)
15 Q. BY MS. WRIGHT: Ms. Micu, during your
16 deposition in this matter, you were asked about a
17 comment that you posted on Facebook in the aftermath
18 of the storm on September 2nd --
19 A. Yes.
20 Q. -- regarding whether you knew that your house
21 was located inside of a reservoir.
22 A. Okay.
23 Q. Do you recall that conversation?
24 A. I recall the conversation during my
25 deposition, yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1306
Trial
1 Q. And you were asked about a comment that you

2 posted that said that you remember -- you said,
3 quote, I remember my escrow officer mentioning at
4 closing, and I need to check my closing documents to
5 verify.
6 A. Yes.
7 Q. What were you referring to when you posted
8 that statement?
9 A. Well, when I said I don't -- I don't -- I
10 didn't -- I don't and I didn't remember the specifics
11 of the conversation with the escrow officer.
12 What I do remember is that we're not in
13 a hundred-year flood zone; I'm not required to buy
14 flood insurance, and I know -- and that she cannot
15 tell me that we're in a reservoir.
16 Q. And when was the first time that you learned
17 that you were -- that your house was located inside
18 Barker Reservoir?
19 A. The first I learned that my house was in
20 Barker Reservoir was after Harvey.
21 Q. Where did you stay when you returned to
22 Houston after Harvey?
23 A. We stayed at a friend's house for a couple of
24 weeks when we returned, and then after that, we
25 rented an apartment, a town home in an apartment

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1307
Trial
1 complex, and then after that -- and then we stayed in

2 the Canyon Park house for a couple months.
3 Q. So you were able to move back into the Canyon
4 Park house for a couple months?
5 A. Yeah, after -- after a year.
6 Q. You don't live there anymore?
7 A. No, I don't live there now.
8 Q. Why not?
9 A. I don't feel safe.
10 Every time it rains, I'm checking the
11 news and checking Facebook to see what's going on,
12 how high the reservoir is, how much rain is falling.
13 This last night, I kept calling my son
14 to see how everything is going there. We have a
15 kayak in the house now.
16 Q. Is your son living in the house?
17 A. Yes, he is.
18 Q. Why do you have a kayak at the house?
19 A. Well, in case they store storm water in our
20 house again, and he has to get out.
21 Q. Ms. Micu, were you able to use and enjoy your
22 house in the normal and customary manner during
23 Harvey?
24 A. No, I wasn't.
25 Q. You are making a claim under the Fifth

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1308
Trial
1 Amendment taking clause.

2 What do you understand that to mean?
3 A. My understanding of it is that if the
4 government is going to use my property for -- for the
5 public, that I should receive just compensation.
6 Q. And what do you think the government took
7 from you?
8 A. They took my home. They took a lot of our
9 personal belongings. They took a bunch of
10 memories/mementos. They took my security and peace
11 of mind.
12 Q. Do you understand why the government stored
13 floodwater on your property?
14 A. To -- to protect the City of Houston and the
15 houses built along the bayou.
16 Q. If you knew in 2012 what you know today,
17 would you still choose to make your home on Canyon
18 Park Drive?
19 A. No.
20 Q. Why not?
21 A. I wouldn't have bought that house if I knew
22 that house was going to be in a reservoir.
24 Pass the witness.
25 THE COURT: Thank you, Ms. Wright.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1309
Trial
1 Ms. Duncan.
2 MS. DUNCAN: Yes, your Honor.
3 May I proceed?
4 THE COURT: Yes.
5 CROSS-EXAMINATION
6 BY MS. DUNCAN:
7 Q. Hi, Ms. Micu.
8 How are you?
9 A. Hi.
10 Q. Ms. Micu, Ms. Wright asked you if you --
11 well, asked you what you did for a living, and you
12 mentioned that you are a real estate investor; right?
13 A. Yes.
14 Q. And you've completed more than 150 real
15 estate transactions; correct?
16 A. Since 2014.
17 Q. When you closed on the property at issue in
18 this case, you had to sign some closing documents;
19 right?
20 A. In 2012, yes.
21 Q. And you provided those closing documents as
22 part of this case; correct?
23 A. Yes.
24 Q. I'd like to turn your attention to Joint
25 Exhibit 109.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1310
Trial
2 Q. And Ms. Micu, we're going to bring the
3 binder.
4 A. Okay.
5 Q. Ms. Micu, the documents marked as Joint
6 Exhibit 109, they have a number on the bottom right
7 corner that starts with "Micu." Do you see that?
8 A. Yes.
9 Q. And this is a compilation of the closing
10 documents provided in this case; correct?
11 A. Yes.
12 Q. And these documents relate to the closing for
13 the property at issue, your property at issue in this
14 case; right?
15 A. Yes.
16 Q. I'd like to turn your attention to the page
17 ending in 0030.
19 Q. Now, on direct, we looked at the same version
20 of this document, which is, I believe, Joint Exhibit
21 107. The page here ending in 1 -- sorry, 0030, is
22 the deed to your property; correct?
23 A. Is what?
24 Q. Is the deed to your property?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1311
Trial
1 Q. And if you look about two-thirds of the way

2 down the page, there is a paragraph starting with the
3 word "property"; correct?
4 A. Yes.
5 Q. And there's description below that; correct?
6 A. Yes.
7 Q. And it states, "Lot 1, in block 2 of Canyon
8 Gate Cinco Ranch, section 7, a subdivision of Fort
9 Bend County, Texas, according to the map or plat
10 thereof, recorded in slide number 153A" -- excuse
11 me -- "1953A and 19534B of the map and or plat
12 records of Fort Bend County, Texas"; correct?
13 A. Yes.
14 Q. Ms. Micu, you're familiar with what deed
15 restrictions are?
16 A. Yes. I am now, yes.
17 Q. And you mentioned on direct that your
18 property is part of a deed-restricted community?
19 A. Yes.
21 ending in 0096.
22 THE COURT: Technically, we're actually
23 looking and reading a document that hasn't been
24 admitted.
25 MS. DUNCAN: You are correct, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1312
Trial
1 THE COURT: And you ought not to read from

2 it.
3 MS. DUNCAN: At this time, your Honor, the
4 United States offers into evidence Joint Exhibit 109.
5 THE COURT: Ms. Wright?
6 MS. WRIGHT: No objection, your Honor.
9 evidence.)
10 MS. DUNCAN: And the page up on the screen
11 ends in 0096.
12 And actually, can we put up the page
13 ending in 96 and 97 on the screen?
14 Q. Ms. Micu the title of this document is
15 "Notice to Purchaser, Deed Restrictions"; right?
16 A. Okay.
17 Q. Is that correct?
18 A. Yes.
19 Q. And if you turn to the next page of this
20 document, we've got it here on the right-hand side of
21 the screen, ending in page Bates 0097.
22 You signed this document; correct?
23 A. Yes.
24 Q. If we turn back to the first page ending in
25 0096, the first full sentence states, "The real

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1313
Trial
1 property described below, which you are purchasing,

2 is subject to deed restrictions recorded in Fort Bend
3 County, Texas"; correct?
4 A. Yes.
5 Q. And the first part of the following paragraph
6 states, "Slide number 1953/A and 1953/B of the map
7 and/or plat records"?
8 A. Correct, it says that.
10 in this document ending in 108.
11 And we're going to put it up on the
12 screen as well, Ms. Micu.
14 Q. Ms. Micu, you recognize this page, don't you?
15 A. Yes.
16 Q. Okay. And if you look to the bottom center
17 of the page just below the drawing, your signature is
18 on this page; correct?
19 A. Yes.
20 Q. And if you look up to the top box on this
21 page, there's a description that states, "Lot 1,
22 block 2, Canyon Gate Cinco Ranch, section 7";
23 correct?
24 A. Yes.
25 Q. And below that it states, "According to the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1314
Trial
1 map and/or plat thereof, recorded in slide number

2 1953A and 1953B of the plat records of Fort Bend
3 County, Texas"; correct?
4 A. Yes.
5 Q. Ms. Wright asked you about a Facebook post
6 that we discussed in your deposition. Do you recall
7 that?
8 A. Yes.
9 Q. Okay. Just for a little context, you made
10 posts during Harvey on Facebook; correct?
11 A. Yes.
12 Q. And you made posts on Facebook just after
13 Harvey; correct?
14 A. Yes.
15 MS. DUNCAN: Your Honor, I'd like to turn to
16 what is page 23 of Plaintiffs' Exhibit 10, and I
17 have -- I'm only going to be talking about one page,
18 so I have made a copy of that single page.
19 THE COURT: Plaintiffs' Exhibit 10?
20 MS. DUNCAN: Well, yes, and I've marked it --
21 because I'm only talking about one page, I've gone
22 ahead and marked it as DX932.
23 THE COURT: What's the page of PX10, ma'am?
24 MS. DUNCAN: It is page 23 in PX10.
25 THE COURT: Ms. Wright.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1315
Trial
1 MS. WRIGHT: Your Honor, this page is part of

2 a longer document of Facebook posts, and we would ask
3 that the entire Exhibit 10, Micu 10, be admitted into
4 the record.
5 THE COURT: Ms. Duncan, why don't we take
6 PX10 and you can focus on page 23, but let's have the
7 compilation.
8 MS. DUNCAN: No, Judge --
9 MS. WRIGHT: And I'm sorry. Just to clarify,
10 it's Micu 10, not PX10.
11 MS. DUNCAN: Yes, you're correct.
12 MS. WRIGHT: It's Micu 10. It's a
13 Plaintiffs' exhibit, but they have specific --
14 THE COURT: It's not PX10? It's Micu 10?
15 MS. DUNCAN: Yes, your Honor.
17 Q. BY MS. DUNCAN: Ms. Micu, the post we're
18 looking at in front of us is a post that you made on
19 September -- or beginning on September 2nd of 2017?
20 A. Yes.
21 Q. And if you look at the first comment
22 underneath the video, you write, "The neighborhood
23 was built in a reservoir overflow"; correct?
24 A. Yes.
25 Q. There is a comment by a person named Nick

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1316
Trial
1 Yim, and he starts his comment by stating, "Look at

2 your closing documents and see what's stated";
3 correct?
4 A. Yes.
5 Q. And if you look down to the following post,
6 you begin your note with, "Mine are in the house";
7 correct?
8 A. Yes.
9 Q. And if you look at the last sentence of this
10 comment, you say, "I remember my escrow officer
11 mentioning it at closing, and I need to check my
12 closing documents to verify"; correct?
13 A. Yes.
14 Q. Ms. Micu, you applied for aid from FEMA
15 related to Hurricane Harvey?
16 A. Yes.
17 MS. WRIGHT: Your Honor, as we did yesterday,
18 we object to this line of questioning.
19 Again, this is the liability phase of
20 trial and damages are not pertinent.
21 THE COURT: Would you state your question
22 again, Ms. Duncan?
23 MS. DUNCAN: I asked if she applied for aid
24 from FEMA related to Hurricane Harvey.
25 THE COURT: We'll take a limited number of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1317
Trial
1 questions on this topic, but we will take this

2 question.
3 MS. DUNCAN: I only have a short number.
4 THE COURT: That's fine.
5 Q. BY MS. DUNCAN: Ms. Micu, you applied for aid
6 from FEMA related to Hurricane Harvey?
7 A. Yes.
8 Q. And you received aid from FEMA after
9 Hurricane Harvey?
10 A. Yes, I did.
11 Q. You received approximately $30,000 in
12 assistance from FEMA?
13 MS. WRIGHT: Again, objection. The amount of
14 money that Mrs. Micu received is not pertinent to the
15 liability phase of this trial.
16 THE COURT: Well, a general amount is
17 appropriate. We'll allow the question.
18 THE WITNESS: I don't know exactly without
19 going back through my own documents. I don't
20 remember what it was exactly. It could in the
21 ballpark of that.
22 Q. BY MS. DUNCAN: Do you think it's in the
23 ballpark of $30,000?
24 A. Honestly, I'd be making a guess right now.
25 It would be a guess.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1318
Trial
1 MS. DUNCAN: Your Honor, I have just a couple

2 of letters I could -- or three letters I could point
3 Mrs. Micu's attention to that may assist.
4 THE COURT: Let's just establish whether or
5 not Ms. Micu and her family received aid from FEMA.
6 That ought to be enough.
7 Q. BY MS. DUNCAN: Ms. Micu, you and your family
8 received aid from FEMA?
9 A. Yes.
10 MS. DUNCAN: Your Honor, if I might have one
11 more question.
12 Q. And you thought it could be in the ballpark
13 of $30,000?
14 A. Maybe, yes. Yes. I'm not sure, but maybe,
15 yes.
16 Q. Ms. Micu, after Harvey, a mold inspector came
17 out to your house to determine if there was mold
18 damage; correct?
19 A. Yes.
20 Q. And after the inspection, you received a
21 certificate of the results; correct?
22 A. Yes, but it -- it was after the house had
23 been remediated and been empty for a long time.
24 Q. Okay. And so you received a certificate
25 approximately March 2018?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1319
Trial
1 We'll look at a document. That will

2 help.
3 A. Yeah.
4 Q. Let's turn to DX520.
5 A. Okay.
6 Q. Ms. Micu, you're familiar with this exhibit?
7 A. Yes.
8 Q. And this is the mold assessor's certificate
9 generated after the mold inspection of your property;
10 correct?
11 A. Yes.
12 Q. The heading of this document is "The Texas
13 Department of Insurance"; correct?
14 A. Yes.
15 Q. And the title is "Certificate of Mold Damage
16 Remediation"; correct?
17 A. Yes.
18 Q. And if we look to the bottom box on this
19 page, the document contains a signature from the mold
20 assessor; correct?
21 A. Okay. Yes.
22 Q. And to the far bottom right corner, the date
23 is March 1, 2018?
24 A. Okay, yes.
25 Q. And the statement just above the signature

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1320
Trial
1 starts with, "I hereby certify that I have inspected

2 the property described in the certificate"?
3 THE COURT: We ought really not to read it.
4 MS. DUNCAN: Right.
5 Your Honor, may I offer Defendants'
6 Exhibit 520 into evidence?
7 THE COURT: Ms. Henry.
8 MS. WRIGHT: Ms. Wright. Lydia Wright.
9 THE COURT: I'm sorry. I keep doing that.
10 Ms. Wright.
11 MS. WRIGHT: No objection.
14 evidence.)
15 Q. BY MS. DUNCAN: Ms. Micu, this is a
16 certification that the mold assessor inspected your
17 property; correct?
18 A. Yes.
19 Q. And upon inspection, we can read he states --
20 or she states that based on my inspection, I
21 determined that the property does not contain
22 evidence of mold damage; correct?
23 A. Yes.
24 Q. Ms. Micu, on Direct, you mentioned that your
25 home was in a 500-year flood hazard zone; correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1321
Trial
1 A. Yes.
2 Q. And that was the case at the time when
3 Hurricane Harvey hit; correct?
4 A. Yes.
5 Q. And your property was also in a 500-year
6 flood hazard zone when you purchased it in 2012?
7 A. Yes.
8 MS. DUNCAN: No further questions.
9 THE COURT: Thank you, Ms. Duncan.
10 Ms. Wright.
11 We'll get it right after all,
12 Ms. Wright.
14 BY MS. WRIGHT:
15 Q. Ms. Micu, you testified that you became a
16 real estate investor in 2014; is that correct?
17 A. Yes.
18 Q. When did you buy your home on Canyon Park
19 Drive?
20 A. In 2012. That's the first home I ever
21 bought.
22 Q. Were you a real estate investor when you
23 bought your home?
24 A. No, I was doing something else entirely
25 different.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1322
Trial
1 Q. Ms. Duncan just asked you about the mold

2 certificate that is dated March 1st, 2018.
3 A. Yes.
4 Q. Did you take any steps between Harvey and
5 March 1st of 2018 to remediate mold damage on your
6 property?
7 A. Yes.
8 Q. What did you do?
9 A. What I did?
10 Well, we took out all the Sheetrock. We
11 took out all the insulation. We took out the
12 moisture barrier which is between the brick and the
13 framing.
14 We had dehumidifiers that were running
15 there 24/7 for at least five or six months. We had
16 fans.
17 We sprayed it with some chemicals at
18 least twice a day for almost six weeks, maybe more.
19 We bought HEPA filters, which we ran in
20 the house for at least a week right before the mold
21 inspection.
22 We got -- we hired an AC inspection
23 company to go in and go through the AC units. They
24 found mold in the air ducts, and they also cleaned
25 that out, cleaned out the filters, cleaned out the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1323
Trial
1 air ducts, serviced the AC.

2 That's what I can remember about the
3 mold remediation work that we did.
4 We had to take out the tile, too, to get
5 the mold that was under there, too, so all the
6 flooring -- all the flooring and all the tile and the
7 plumbing.
8 Q. Let's look at Micu 10, please, which has been
9 admitted into the record.
10 Let's look at a couple of your posts
11 from during -- immediately after Harvey.
12 A. Okay.
13 Q. If you could turn to page 11.
14 A. (Witness complies).
15 THE COURT: Well, actually, this post hasn't
16 been admitted for the record.
17 MS. WRIGHT: I'm sorry, your Honor. I
18 thought that --
19 THE COURT: It was identified as an exhibit,
20 but it wasn't actually, according to my records,
21 admitted.
22 We can admit it.
23 MS. WRIGHT: Let's admit.
24 We move to admit Micu 10.
25 THE COURT: Ms. Duncan.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1324
Trial

3 This is page 23.
4 MS. WRIGHT: Sorry, this is pages 1
5 through -- there are 41 pages in Micu 10.
6 THE COURT: Okay. Thank you.
7 We'll admit the whole document?
8 MS. WRIGHT: Please.
9 THE COURT: All the record of the Facebook
10 posts?
11 MS. WRIGHT: Yes, please.
13 Admitted.
15 evidence.)
17 THE COURT: I don't want to do it, but...
18 MS. WRIGHT: Let's turn to page 11, please.
19 THE COURT: People ought not to be on
20 Facebook, but that's a separate issue.
21 THE WITNESS: I'm sorry? What did you say?
22 THE COURT: What?
23 THE WITNESS: I didn't hear what you said.
24 THE COURT: I'm sorry. Say again.
25 THE WITNESS: I didn't hear what you said.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1325
Trial
1 THE COURT: I said, People ought not to be on

2 Facebook, but happily most federal judges are not on
3 Facebook, so I don't have to worry about that.
4 Q. BY MS. WRIGHT: Looking at page 11, this is a
5 post that looks like a post from you dated August
6 28th, 2017.
7 I see a comment from Eleanor Rigby
8 asking is your baby still in Fort Bend.
9 What was your response to that?
10 A. "No, he left. Walked out the neighborhood
11 and the water was up to his chest. He walked to a
12 Walgreens, and his dad picked him up. When he left,
13 water was up to our door, and it's still raining."
14 Q. Who are you talking about in that post?
15 A. I'm talking about Christian leaving the
16 house. He was at the house and him walking out
17 leaving the house.
18 Q. Let's look at page 14. This is Micu 10, page
19 14.
20 What is this an image of, if you know?
21 A. The streets on Canyon Gate Boulevard and the
22 neighborhood.
23 Q. Can you describe the image for the record,
24 please?
25 A. In this image, you see the dirty storm water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1326
Trial
1 on the -- covering the streets, covering some of the

2 lawns. You see the street sign, and you see some
3 trees.
4 Q. Let's look at page 39.
5 I'm sorry, page 38.
7 Q. And at the top is a post dated September 7th,
8 2017. You've marked that you are feeling sad and
9 that you're in Katy, Texas.
10 Would you please read to us starting
11 from the top?
12 A. (Reading:) Everybody is asking what do I need
13 to have to prepare to clean my house. They're saying
14 masks, gloves, disinfectant, et cetera, et cetera,
15 but nobody nothing talks about how to mentally
16 prepare yourself to throw away all your stuff.
17 Everybody says, oh, it's just staff. Then you see
18 your favorite jacket that always kept you warm. You
19 see all your kids toys, their favorite toys. You see
20 that one shirt that you like to wear on sunny days.
21 And they're all downstairs either next to a wall that
22 has mold growing on it or wet from being in nasty
23 floodwaters for several days.
24 Q. And I'll stop you there.
25 And let's talk about page 23.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1327
Trial
1 This will be the last one.

2 This was a post dated September 2nd,
3 2017. It says that you were live. What does that
4 mean?
5 A. On Facebook there's an option where you can
6 take a video live as it's going and as it's opening.
7 It's a posting on Facebook at the exact same time.
8 Q. So you were taking a live video.
9 And what was the the video of?
10 A. There is somebody from the Army Corps of
11 Engineers trying to explain to us about how our house
12 flooded, and that it was by design.
13 Q. What do you mean it was by design?
14 A. That's the words that they said. That -- I
15 can't remember exactly what he said, but he said that
16 it was -- the reservoirs were functioning as they
17 were supposed to or something like that.
18 Q. And the post, can you go ahead and read us
19 your comments underneath the image of the video?
20 A. "The neighborhood was built in a reservoir
21 overflow. How freaking crazy is that."
22 Q. Was this the first time that you learned that
23 your neighborhood was built inside Barker Reservoir?
24 A. Yeah.
25 Q. How were you feeling when you wrote this

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1328
Trial
1 post?
2 A. Shock. Surprise. I was really just -- like
3 how -- how could this happen? How did we not know?
4 Yeah, I think shock is just the closest word to it,
5 but it doesn't encompass all the thoughts and
6 feelings and emotions and experiences I had.
7 MS. WRIGHT: Thank you, Ms. Micu.
8 No further questions.
9 THE WITNESS: Okay.
10 THE COURT: Any further cross, Ms. Duncan?
11 MS. DUNCAN: No, your Honor.
12 THE COURT: May the Court excuse Ms. Micu?
13 MS. WRIGHT: Yes.
14 THE COURT: Ms. Micu, thank you.
15 Thank you for coming and testifying.
16 THE WITNESS: You're welcome.
17 Thank you for being here.
18 MR. CHAREST: Your Honor, Plaintiffs call
19 Randall Bell.
20 THE COURT: Mr. Bell?
21 MR. CHAREST: Yes, sir.
23 MR. CHAREST: Mr. Bell is an expert witness.
24 Mr. Bell, if you would approach the
25 bench to be sworn as a witness.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1329
Trial
1 That's about fine. Mr. Bell, would you

2 raise your right-hand to be sworn.
3 THE COURT: Do you swear or affirm that the
4 testimony you're about to give at this trial shall be
5 the truth, the whole truth, and nothing but the truth
6 so help you God?
7 THE WITNESS: Yes, I do.
9 Thank you.
10 Be seated in the witness stand, and once
11 you're there and comfortable, state your full name
12 for the record.
13 THE WITNESS: Dr. Glen Randall Bell.
14 GLEN RANDALL BELL, Ph.D.
18 BY MR. CHAREST:
19 Q. Dr. Bell, thanks for coming today.
20 I understand you had some weather
21 troubles last night getting in, and I appreciate your
22 efforts of being here.
23 A. Sure.
24 Q. Did you write a report in this matter, sir?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1330
Trial
1 Q. And I'll put it -- it's in the record, not in

2 the official record yet, but it is marked as
3 Plaintiffs' 660; is that correct? It's right in
4 front of you as well, underneath your book.
5 A. Oh, yes, it is.
6 Q. Great.
7 We'll talk about your qualifications and
8 we'll talk about the details of the report in a
9 moment.
10 So tell the Court, if you would, please,
11 your educational background.
12 A. Well, I grew up in Southern California, and
13 of course graduated from high school there. Then I
14 went to Cal State Fullerton and BYU, where I earned a
15 bachelor's degree in finance and accounting. And
16 then I -- after that I went to UCLA and earned an MBA
17 with an emphasis in real estate. And then after that
18 I went to Fielding, which is in Santa Barbara,
19 California and earned a Ph.D. in essentially
20 socioeconomics.
21 Q. Describe for the Court your current position,
22 please?
23 A. I am the CEO of Landmark Research Group based
24 in Southern California. We have an office in Florida
25 as well.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1331
Trial
1 Q. What does Landmark Research Group do?

2 A. We specialize in real estate damage
3 economics.
4 Q. Before that what did you do for work, sir?
5 A. I had been in this field of distressed real
6 estate since 1986. Before it was more polished type
7 jobs.
8 Q. Sure. And did you work for Bell Henderson &
9 Sanders?
10 A. Yes, before Landmark, excuse me, I did, I
11 worked as -- I was the CEO of Landmark -- of Bell,
12 Henderson & Sanders for 15 years. And then prior to
13 that I ran -- I led the real estate end of the
14 practice at PricewaterouseCoopers and at
15 Pricewaterhouse.
16 Q. Do you hold any licenses in the area of real
17 estate?
18 A. I do. I have a broker's license in the State
19 of California, although I do not broker real estate,
20 other than my own investments. I also have a license
21 in the State of California and the State of Texas and
22 other states to appraise real estate.
23 Q. Tell the Court about your experiences in
24 determining whether detrimental conditions have
25 effects on real estate values in terms of your work

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1332
Trial
1 history and experience?

2 A. Well, sure. As I said, I've been working in
3 this field since -- this specialty since about 1992.
4 I worked on a number of cases that are well known. I
5 worked on the World Trade Center case for the
6 government. I worked on the Flight 93 crash site,
7 and a number of well known crime scenes, OJ Simpson,
8 Jon Benet Ramsey, Heaven's Gate mass suicide.
9 I worked on Hurricane Harvey, the BP Oil
10 spill and a number of cases.
11 Q. Did you mean Hurricane Katrina there? You
12 said Harvey, for this one.
13 A. I worked on that one, too, and Hurricane
14 Katrina, yes.
15 Q. All right. Thank you.
16 Are you published in the field of real
17 estate --
18 THE COURT: Mr. Charest, may I ask a quick
19 question?
20 MR. CHAREST: Of course, sir.
21 THE COURT: Who was your client or retained
22 entity in the Flight 93 site?
23 THE WITNESS: Flight 93, my client was
24 Michael Slanovich, the property owner. I believe my
25 best shot at spelling it is S-v-o-n-i-v-i-c-h [sic].

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1333
Trial
1 Q. BY MR. CHAREST: We'll go with that.

2 Have you ever been retained by the
3 United States as an expert?
4 A. Yes.
5 Q. What matters were those, sir?
6 A. Well, there's been a few.
7 One was a case up in Reno, at the
8 National Park Service. Another was the nuclear
9 facility, Big Rock -- Big Rock, yeah. It was a
10 decommissioned nuclear facility in Michigan, and
11 there have been a number of others.
12 Q. Are you published in the field of real estate
13 damage economics or real estate appraisals?
14 A. I am, yes.
15 Q. All right. Like, for example, this book,
16 sir?
17 A. I wrote that textbook, yes. That's the third
18 edition, the title is Real Estate Damages.
19 Q. Tell the Court just generally what this
20 focuses on, if you would, please?
21 A. Well, cases just like this. This book is in
22 its third addition and it's published by the
23 Appraisal Institute.
24 Q. Have you taught any courses in the area of
25 real estate damages and economics?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1334
Trial
1 A. Yes. I'm not a regular instructor with the

2 Appraisal Institute, but I had taught two in Iowa I
3 think last week. But I've taught real estate damages
4 and detrimental condition type seminars for decades
5 coast to coast and in other countries as well.
6 Q. Thank you.
7 In your report can you turn to page 23
8 and just confirm for us, before I offer the exhibit
9 that this is an accurate representation of your CV at
10 the time your report was issued, sir?
11 A. It is, yes.
12 Q. Thank you.
13 MR. CHAREST: Your Honor, I tender the
14 witness as an expert in real estate damage,
15 economics, and real estate valuation.
16 THE COURT: Before you lead voir dire, is
17 that the end of your voir dire?
18 MR. CHAREST: That's the end of his
19 qualifications, yes, sir.
20 THE COURT: One of the requirements is that
21 you address what Dr. Bell did in this particular
22 instance, and what materials he looked at and what
23 methodology he applied.
24 MR. CHAREST: We can do that right now if you
25 like, sir. Very well.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1335
Trial
1 Q. Turn to page 60, if you would, of your

2 report, sir, and we'll talk about the methodology
3 that you used to determine severity in this case; all
4 right?
5 A. Sure.
6 Q. What are we looking at here in this
7 detrimental conditions matrix?
8 A. The D.C. matrix is at least what I call it.
9 The D.C. matrix is something I wrote many years ago,
10 and is the essence of the book and seminars and so
11 forth. And the essentials to know here is that with
12 any damaged real estate, you look at three
13 components: cost, use and risk. In other words, the
14 costs incurred for assessing, repairing and any
15 ongoing costs where you're writing out checks.
16 The second component is loss of use,
17 meaning the utility of the property. Is that
18 affected, the normal bundle of rights to use the
19 property.
20 And the third element is risk, meaning,
21 just like Wall Street has risk factors in the stock
22 market, so does real estate, and you look at the risk
23 to see if the risks are incrementally higher than
24 what the normal baseline risks are. So those are the
25 three elements that I looked at.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1336
Trial
1 And since I wrote these methodologies,

2 or these -- the D.C. matrix, they have been adopted
3 into the Uniform Standards of Professional Appraisal
4 Practice, which are the federal guidelines that
5 licensed appraisers such as myself need to comply
6 with.
7 Q. All right. Were you ever asked to quantify
8 damages in this case at all, sir?
9 A. No.
10 Q. All right. What were you asked to look at
11 specifically?
12 A. Well, the essence of what I was asked to do
13 was to take a look at the severity issue and see if
14 this -- using the standard valuation methodologies,
15 if this met that threshold of severity.
16 Q. All right. And did you do a case study in
17 this case, sir?
18 A. I did.
19 Q. All right. And I think you'll see a chart on
20 page 14 of your report, sir.
21 A. Yes.
22 Q. Now, without talking about sort of the
23 results of that study, will you explain to the Court,
24 if you would, the concept behind it and how you
25 achieved that study.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1337
Trial
1 A. Sure.
2 Basically what we did, your Honor, is we
3 spread a very wide net across the areas involving the
4 reservoirs. Properties that had flooded. Not all
5 properties did flood, so we spent a lot of time
6 sorting out which ones flooded and which ones did
7 not. For that criteria we looked at both FEMA and
8 what the agents told us. We called on the phone and
9 spoke to agents in every case.
10 Then on top of that, we look to see if
11 the properties had sold after the flood. Not all
12 properties had. Probably I have to say most had not,
13 at least at that time. But we found properties that
14 actually transacted, and on top of transacted, they
15 transacted at arm's length, like it wasn't an
16 interfamily transfer or something like that.
17 Then we had to sort out and find out
18 what the repair costs were, because as I just
19 mentioned, there is cost, use, and risks that had to
20 be considered. So we had to find agents or brokers
21 or property owners that would spend time on the phone
22 with us and give us estimates of what those costs
23 were. Not all were willing to share that
24 information, but we kept at that basic process until
25 we developed a significant number of samplings or

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1338
Trial
1 case studies throughout the region with all the

2 various components to take a look at specifically the
3 costs and the risks.
4 At that point we were well over any
5 threshold of severity, but it should be mentioned
6 that use was also considered and people were
7 displaced for months, and that was considered as
8 well, but I didn't really calculate the numbers.
9 That's -- that could be calculated later.
10 Q. I don't want to get into too much of the
11 results, but I appreciate what you're talking about.
12 A. Sure.
13 Q. In terms of data, how does the MLS data
14 factor into your work? I'm just trying to tell the
15 Court what things you considered. Did you use MLS
16 data to select the properties?
17 A. Yes, we used MLS data and we used public
18 records as the basic starting data, yes.
19 Q. What if any involvement did you have with
20 local appraisers to give you a sense of the market?
21 A. Well, that's essential. Because I'm from
22 California, although I work all over the country, but
23 I have a license here. But we utilized the services
24 of Tim Archibald. Mr. Archibald is a local appraiser
25 who I've known for some time, and he provided a lot

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1339
Trial
1 of assistance to us.
2 Q. Did he have people that flooded in Harvey as
3 well?
4 A. I'm sorry?
5 Q. Did some of Tim Archibald's people flood in
6 Harvey as well?
7 A. Oh, yes. He was living it, yes.
8 Q. In what way -- what methodology did you use
9 to confirm that the transactions were arm's length
10 transactions?
11 A. When you get on the phone you have to talk to
12 the brokers. That's primarily one of the key
13 questions asked of the breaker or the agent.
14 Q. And just looking from the table headers down,
15 tell the Court the things you focused on without
16 getting to the conclusions, please, in the study.
17 A. Well, we looked at the closing data. Of
18 course they are all after Hurricane Harvey. We
19 looked at the closing costs, again only using arm's
20 length transactions.
21 Another thing that, with the closing
22 costs, is that as Mr. Archibald had told me, and I
23 had already known, Texas is unique because it's
24 what's called a nondisclosure state. In other
25 states, they are called disclosure states, and you're

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1340
Trial
1 mandated to report the sales price. That -- that

2 criteria alone really created the need for a lot of
3 heavy lifting to get the data.
4 Normally you would have a lot more data,
5 but that's a unique factor.
6 And then we segregated the properties in
7 terms of being unrepaired or repaired. And because
8 they're looked at, the math is a little different for
9 the two.
10 We looked at the preflood value for
11 that. Mr. Archibald, and also one of my associates
12 at Landmark, Mike Sanders, and I looked at comparable
13 sales immediately before the flood, before anybody
14 would know that there was going to be a flood, to
15 establish what's called a benchmark value.
16 Then the repair costs were told to us by
17 the broker agent. Their estimates -- but credible
18 estimates, because in the appraisal profession you
19 want to talk to somebody who is a party to the sale
20 who would have that information.
21 From that set of data, we can then
22 compute the risk element as an -- as an intermediate
23 calculation. We're really not studying risk here,
24 it's just one of the calculations.
25 And then in the last column, ultimately

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1341
Trial
1 what we're looking at is the total financial impact,

2 which is cost and risk. And then we did it both in
3 terms of absolute dollars and then percentage as a
4 percentage of the unimpaired value.
5 Q. I'm sorry.
6 A. That's okay.
7 Q. In the exercise of the Uniform Standards of
8 Professional Appraisal Practice, did you find that
9 the data you had available was sufficient to draw a
10 conclusion as to the sort of the quality of the
11 impact, not in terms of quantum, but general weight,
12 if you will, of impact?
13 A. It was more than enough data.
14 In a normal appraisal, for those who
15 appraise houses for refinancing and banks and that
16 kind of thing, the URAR form is what it's called,
17 they use three comparables, maybe six. We use -- we
18 ultimately found 34 points of data, so it was more
19 than enough data to take a good look at things.
20 Q. And just taking a step back from this case
21 study to just the general literature on flood risk
22 and impact or value of valuations, what does the
23 literature indicate about flooding events and how it
24 impacts property values just in general?
25 MR. DAIN: Objection, your Honor. I think

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1342
Trial
1 we're into the substance here rather than just

2 talking about what he did to reach his opinion.
3 THE COURT: Mr. Dain, that objection might be
4 well taken.
5 Mr. Charest.
6 MR. CHAREST: I'll rephrase.
7 I was trying to get to the opposite side
8 of that.
9 Q. What literature, if any, did you go to in
10 order to confirm your views here, in the process of
11 getting your opinions out?
12 A. Well, I went to professional published
13 literature. Being a member of the Appraisal
14 Institute, as I am, it gives us access to the Lum
15 Library, which is the quintessential database of
16 literature.
17 MR. CHAREST: So now we'll tender the expert
18 as an expert in real estate damages, economics and
19 real estate valuation, sir.
20 MR. DAIN: Your Honor, I think I need to voir
21 dire on this, and let me explain.
22 THE COURT: Yes, why don't you tell me.
23 VOIR DIRE EXAMINATION
24 BY MR. DAIN:
25 Q. Good afternoon, Dr. Bell.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1343
Trial
1 A. Hello, Mr. Dain.

2 Q. We met at your deposition; correct?
3 A. Yes.
4 Q. All right. You've been tendered here as an
5 expert in valuation and damages associated with real
6 estate; correct? I'm characterizing it a little bit.
7 A. Correct.
8 MR. CHAREST: Objection; that misstates the
9 tender.
10 THE COURT: It's close.
11 MR. DAIN: I'm not -- I can restate. Let me
12 draw the line.
13 Q. The opinion you've presented here focuses on
14 severity; correct?
15 A. Yes.
16 Q. The only quantification that was performed
17 within your expert Declaration was this table on page
18 14 that you and Mr. Charest have talked about here
19 today; correct?
20 A. Correct.
21 Q. But beyond that, your opinion -- you opine in
22 areas regarding "bundle of rights" the parties have;
23 isn't that true?
24 A. I'm sorry, I don't understand your question.
25 Q. What's a bundle of rights?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1344
Trial
1 A. Well, a bundle of rights is a legal term that

2 when you own a piece of property in what's called fee
3 simple, a fee simple estate, it essentially means
4 that you own the right to occupy it, lease it,
5 bequeath it, meaning put it in a will, not do
6 anything. You have a -- I haven't mentioned them
7 all, but there are several things you can do or not
8 do with the real estate. As a fee owner, you have
9 that right.
10 Q. I think that puts us on the same page. Thank
11 you.
12 Let me just pull -- maybe this will be a
13 good way to go about it -- PX Upstream 660, which is
14 your expert report.
15 A. Uh-huh.
16 Q. Page 4.
18 Q. Number 3. And it reads there, "My analysis
19 as to the severity of the impacts on properties, and
20 the use and rights of their owners, developed and
21 flooded behind the Addicks and Barker dams
22 demonstrates that there is a severe impact to the
23 properties and owners' rights and use. Specifically,
24 the flooding severely impacts these properties and
25 the owners' properties."

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1345
Trial
1 Did I read that correctly?

2 A. Yes.
3 Q. Now that goes beyond simply valuation, does
4 it not?
5 A. I'm not clear on your question. I think that
6 it's related to a valuation question --
7 Q. Well, whether it's related to it or not,
8 doesn't it go beyond simply what is shown in the
9 table on page 14?
10 A. I'm not sure what you mean.
11 Q. Okay. Isn't it true that what you do in your
12 Declaration is take the table on page 14 and then
13 assert the severity argument over and above that?
14 A. I don't know that that is true. I think that
15 the severity in this case is self-evident. I think
16 that the data supports what's self-evident, but I
17 don't think -- I don't look at it the way you just
18 described it.
19 Q. Okay. Let me -- let me go with that, because
20 when you approached this opinion and your expert
21 declaration, you were not provided any definition of
22 severity by counsel, were you?
23 A. I don't recall having been provided with a
24 definition of severity.
25 Q. And you did not define that term in your

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1346
Trial
1 Declaration; correct?
2 A. I don't believe so, correct.
3 Q. Okay. And you know of no definition for
4 severe or severity contained in the Uniform Standards
5 for Professional Appraisals of Practice; correct?
6 A. Well, I never specifically looked. I don't
7 know that USPAP really addresses those kinds of
8 questions.
9 Q. And I'll try to rephrase it to USPAP to save
10 a few words as we go forward.
11 A. Okay.
12 Q. Had you finished your answer?
13 A. I don't think I have, but I've lost track of
14 where I was.
15 Q. Okay. Well, let me try it this way. It's
16 fair to say that in your Declaration here, you
17 applied your understanding of the common meaning of
18 the term severity or severe when you presented this
19 Declaration?
20 A. Well, that's a fair question. I applied the
21 definition of severity in my profession. I can't
22 apply it in a legal profession because I am not in
23 the legal profession, but from an appraisal
24 perspective, what would reach the threshold of
25 severity, because I've seen plenty of cases, or I

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1347
Trial
1 imagine a number of situations which aren't severe,

2 and this is self-evident. It's severe.
3 Q. I'm trying to focus on -- let me interrupt
4 you, because I'm trying to bring you back to the
5 definition that you used. We spent a lot of time in
6 your deposition talking about the definition of
7 severity that you applied in reaching the opinion
8 that you presented here, didn't we?
9 A. Well, we spent some time. I wouldn't say a
10 lot of time, but we spent some time on it.
11 Q. Fair enough. Multiple questions at multiple
12 times during the day.
13 A. There were more than two, yes.
14 Q. And I mean, you just mentioned the threshold.
15 One of the things I asked you about at that time was
16 to identify a threshold, to help me get a definition
17 from you, so when an impact crosses a threshold and
18 becomes a severe impact. Do you remember me asking
19 you about that issue and presenting that issue to
20 you?
21 A. Yes, I sure do.
22 Q. And at that time you were unable to identify
23 such a threshold for me; isn't that true?
24 A. That misstates my testimony in my deposition.
25 If you go back to my deposition, I think it will show

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1348
Trial
1 something different. I said my assignment in this

2 case was not to establish a threshold, but in this
3 case I was -- in this case it was whatever that
4 threshold is, which again is not my assignment. This
5 is so above any reasonable threshold as to be severe,
6 and it's self-evident.
7 Q. And that's your argument; right? The point
8 you're advocating here is that it doesn't matter what
9 the definition of severe is from your perspective;
10 everything you saw here is severe.
11 A. Can that question be read back? I didn't
12 quite follow it.
13 Q. I can restate it.
14 A. Sure.
15 Q. You provided and have provided no definition
16 for the words severe or severity in this case and in
17 your report; correct?
18 A. That's correct, and I'm not even sure --
19 Q. Okay. Stop.
20 A. Yes, that's correct.
21 THE COURT: Mr. Dain, you ought not to cut
22 off the witness who might give an answer and then
23 explain the answer.
24 Go ahead and explain your answer.
25 THE WITNESS: I'm not even sure that there is

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1349
Trial
1 a definition in USPAP or in the appraisal profession,

2 but I know the definition of severity. Basically it
3 means it's a harsh, extreme-type situation, and I
4 believe being in this profession for decades, I
5 understand in the context of my profession.
6 Q. BY MR. DAIN: All right. Well, I think my
7 foundation is laid here for the objection that I had,
8 your Honor.
9 THE COURT: I'm sorry, say again.
10 MR. DAIN: I think my foundation is laid for
11 the objection that I have, so I'd like to state my
12 objection at this point.
13 THE COURT: Yes, please. I'd be interested
14 to hear it. I'm glad you're doing this rather than
15 Mr. Shapiro, and I'll explain in a minute.
16 MR. DAIN: Okay.
17 I would move to limit this witness'
18 testimony to preclude him from opining as to the
19 severity of the impact. And let me explain what I'm
20 doing and what it means, what line drawing I'm
21 attempting to achieve here.
22 Severity is an issue that this Court is
23 going to have to address from a legal perspective,
24 not an opinion that's appropriate for an expert
25 opinion within Rule 702. He has talked about and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1350
Trial
1 discussed the table that he has presented.

2 My opinion, or my motion at this point
3 in time is not to exclude his ability to present that
4 table, and allow counsel to argue from that table
5 about whether it's severe or not, but within the
6 report he goes beyond that.
7 And so there's no methodology associated
8 with the areas when he goes beyond that table, with
9 those points in his Declaration where he goes beyond
10 the table is incapable of replication. Again, we
11 were looking -- he is opining about a word that does
12 not have a definition in the industry, and that he
13 has no particular definition for here today.
14 We accept him as an expert in damages.
15 We don't accept him as an expert in multiple rights,
16 this motion of bundle of rights that we're talking
17 about.
18 And this opinion is different than what
19 other appraisers or economists do when assessing
20 market impacts. That's a quantitative data or that's
21 a quantitative analysis, and that's the type of
22 analysis that's in table 14.
23 THE COURT: Do you have any other voir dire?
24 MR. DAIN: I do not have any other voir dire.
25 THE COURT: Mr. Charest.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1351
Trial
1 MR. CHAREST: I was just going to point out

2 that the last thing that Mr. Dain said about his
3 opinion is different from all these other things,
4 there is no evidence of that in the record.
5 THE COURT: Well, one of the fascinating
6 things about this case is that the word severity
7 comes from the Supreme Court's opinion in Arkansas
8 Game and Fish versus United States.
9 The Court is very familiar with that
10 case. I tried that case. The post-trial decision
11 was mine. Mr. Shapiro tried that case as counsel for
12 the government. The post-trial briefing was his.
13 That went up to the Court of Appeals for the Federal
14 Circuit, then it went up to the Supreme Court, then
15 we got the decision from Justice Ginsberg, and then
16 it went back to the Court of Appeals and was
17 affirmed.
18 The word severity is a relatively new
19 term that appears in Justice Ginsberg's decision. It
20 is a relative term. It depends on the context.
21 Mr. Shapiro understands that. I
22 understand that. Severity is allowed in this
23 particular case. I will not limit Dr. Bell. I've
24 been there before and I'm there again.
25 Mr. Charest.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1352
Trial
1 MR. CHAREST: Thank you, your Honor.

2 THE COURT: Now the Court accepts Dr. Bell as
3 an -- I'm sorry for the detailed exegesis, but the
4 Court accepts Dr. Bell as an expert on real estate
5 damage and economics and real estate valuation to
6 include severity.
7 MR. CHAREST: Thank you, sir, and I
8 appreciate the modification, frankly, of my offer.
9 It is appropriate, thank you.
10 THE COURT: I don't think it was necessary.
11 It is what it is.
13 THE COURT: Now can we have the direct
14 examination.
15 MR. CHAREST: I will, forthwith.
16 THE COURT: I'm sorry, Mr. Dain, and I'm
17 sorry Mr. Shapiro for the detailed exegesis and
18 explanation, but we've all been there before and we
19 understand each other.
20 MR. CHAREST: Thank you, sir.
22 BY MR. CHAREST:
23 Q. Let's start with the literature that we
24 mentioned briefly, Dr. Bell. What does the
25 literature say as pertains to flooding events and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1353
Trial
1 value of property and its effects on value of

2 property just generally?
3 A. Well, there's a lot of literature, but
4 generally it can be summed up that one would just
5 nationally expect, it is a detrimental condition. It
6 essentially all falls under the issues of the costs
7 incurred by the property owner, the fact that people
8 were evacuated, and there is a loss of use for that
9 period of time, as well as the reconstruction period
10 of time, and then the market tends to view those
11 properties differently than they did before they
12 flooded.
13 Q. And on that issue, the last issue you said
14 about the change in market valuation, is there a
15 thumbnail number that you have in mind, not from
16 these particular cases, but from the literature that
17 you would say is roughly on order of magnitude
18 the -- the amount you'd expect the value to drop?
19 A. There's ranges. And each look at things a
20 little differently, but generally they are commonly
21 north of the typical benchmark of 20 percent. People
22 put 10 or 20 percent down on their homes. Actually
23 the bank owns a majority of a lot of properties, but
24 in terms of the equity, which is what I keep my eye
25 on, it usually wipes out that equity. I don't want

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1354
Trial
1 to say usually, but it often wipes out that equity

2 and can be as high as 30 percent or more.
3 Q. So I want to make sure the Court's on track
4 with what we're talking about. When you say equity,
5 you're taking about the amount of money that the
6 typical homeowner might actually earn, and not the
7 amount of the home that the typical homeowner might
8 own in the investment property; is that right?
9 A. That is right, and thank you for letting me
10 clarify that.
11 For example, if somebody buys a house
12 for $300,000, they put 30, 10 percent down, or 60, 20
13 percent down, and that's their equity. And a flood
14 can easily wipe that out. That was my point.
15 Q. Fair enough. Thank you.
16 In terms of long-term impacts, what if
17 anything can you tell us about the rate of
18 depreciation of the property. Does that change at
19 all?
20 A. There is some literature that says that the
21 depreciation of the property changes from the normal
22 kind of scheduled depreciation, but there is
23 literature that says that.
24 Q. What is the effect of having an increase --
25 let me first establish, what effect would the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1355
Trial
1 flooding have on insurance premiums in the typical

2 situation like that?
3 A. Flood insurance is like if you're in a fire
4 hazard area, there is insurance for that. If you
5 have a history of flooding, obviously that cannot
6 only affect the insurance, it can affect the ability
7 to get a mortgage or interest rate. It can affect a
8 number of factors.
9 Q. Fair enough. And is that one of the
10 long-term effects that the literature sees in the
11 flooding conditions?
12 A. Yes.
13 Q. All right. You set out the cost, use and
14 risk sort of concepts, but let's drill down on that
15 in terms of this case here.
16 What risk effects, if any, were
17 associated with the flooding of the upstream
18 properties? Would you define for the Court what you
19 mean by risk effect for these cases?
20 A. Well, the risk effects, again, I want to be
21 crystal clear, I did not measure risk effects because
22 it was an intermittent calculation.
23 Q. Specifically, I can introduce the topic and
24 you can describe what we're talking about.
25 A. Oh, sure.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1356
Trial
1 Q. Market resistance is the topic I want you to

2 talk about.
3 A. Yeah, there is three types of risk, but
4 germane to this case there really comes down to two.
5 One is called project incentive. It's essentially
6 that type of risk -- it's essentially like if you
7 watch a show like Flip This House or Flip That House,
8 at the end they have a summation where the people say
9 "I bought the property for this. I put this much
10 money into it. I flipped it for this amount, and
11 this is my profit." That profit is a project
12 incentive. It is a measurement of risk for taking on
13 that investment project.
14 Then that's -- that's project incentive
15 risk.
16 There is another type of risk called
17 market resistance, and it's basically saying the
18 property has been repaired. That's over, and the
19 flood is over and dried out and the property is
20 repaired, but now you go to put a for sale sign on
21 the property and there is a real question, is the
22 market going to pay full value for it, or is it going
23 to be resistant towards paying full market given its
24 history.
25 And there are two distinct types of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1357
Trial
1 risks which are obviously big issues in this case.

2 Q. Okay. Turn to the next -- from risk to cost,
3 Describe to the Court what you mean by cost effects.
4 A. Sure.
5 Well, there 's essentially three types
6 of costs in this case; one is the assessment cost to
7 have the contractors come out and determine if
8 there's mold, and what the repair costs are going to
9 be, all the preliminary assessments. Then there is
10 the actual repair costs themselves, other than the
11 most obvious, and usually the biggest number. But
12 even after you have repairs, you can have ongoing
13 costs with higher premiums for risk -- or excuse me,
14 for flood insurance, those types of things.
15 Continued mold abatement might come up. And on
16 another element that sometimes comes up is what's
17 called O & M, operations and maintenance. That comes
18 up more in the context of commercial properties, but
19 there is various types of cost.
20 Q. Okay. And describe for the Court the use
21 effects that come into play in this case.
22 A. Sure. Well, the first type of use issue is
23 that, you know, when the sheriff comes pounding on
24 your door and goes up and down the street with sirens
25 and bullhorn and says there is a mandatory

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1358
Trial
1 evacuation, where you have to literally flee,

2 sometimes for your life, some floods do, you know,
3 kill people. So there's that loss of use of your
4 property during the actual flood event.
5 And then in time, the flood will subside
6 and then you have a loss of use, or you can have a
7 loss of use because the property is not really
8 inhabitable in a normal fashion.
9 I remember with Hurricane Katrina,
10 occasionally seeing someone who was basically living
11 upstairs with porta potties and generators. I don't
12 know that that's really normal utility of a property,
13 but that question of can you really live there
14 properly while the property is being repaired is the
15 use issue there.
16 Once they're fixed, normally that use
17 issue subsides at that time and there is no lingering
18 use issues.
19 Q. But to Mr. Dain's point about the bundle of
20 rights, one of the -- as an appraiser, and as a
21 person involved in real estate, you understand that
22 when you're selling property, you typically sell all
23 of it, every right that goes with that property,
24 subject to whatever easements exist, that's what the
25 buyer is expecting; right?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1359
Trial
1 A. Sure. The fact is, I think in the front of

2 my book, in the front of a lot of real estate books,
3 right in the front chapter is a bundle of rights
4 discussion and a diagram to go with that.
5 Q. And so the notion with respect to this use
6 effect, by virtue of the impoundment of water, what
7 effect does that have on the ability for someone to
8 go in and use their own home? I mean it's evident,
9 but I just need it for the record.
10 A. It is self-evident, but nonetheless, the fact
11 that you can't -- I mean, unless you have a two-story
12 home, you might be able to reside at some level
13 upstairs. The downstairs area during a flood event
14 are often not -- they're not -- it's not even
15 inhabitable. It's not safe, and oftentimes there's
16 mandatory evacuations. You have to leave.
17 And then -- and then once the flood
18 subsides, the construction and the overages and the
19 whole severity, the whole harsh impact of it is
20 profound.
21 Q. Okay.
22 A. You're essentially in a construction zone.
23 Q. Right, and so you're not enjoying quietly
24 your home as you would otherwise; correct?
25 A. Not by a long shot.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1360
Trial
1 Q. Let's turn, if you would, please, to page 14,

2 and we'll talk about the substance of the property
3 study.
5 Q. So just so it 's pretty clear in the record,
6 can you give the Court a general -- your overview
7 of -- your opinion as to whether or not these
8 upstream properties that are before the Court today
9 were severely impacted by Hurricane Harvey and the
10 flooding and impoundment by the storm waters by the
11 federal government.
12 A. Sure. In this preliminary case study
13 analysis, the far right column, which I've shaded
14 with kind of a light blue, is a percentage, and what
15 I have in the back of my mind as I look down at a
16 column of numbers like this, are those equity numbers
17 we just discussed, the 10 percent or 20 percent.
18 Routinely, you see the equity largely or
19 entirely -- no pun intended -- under water. You
20 know, as I said earlier, your equity can be gone.
21 That tells me that this is, at least in my
22 profession, it is a very severe situation.
23 Q. And in your profession, what is your -- the
24 common man, what is the biggest investment they make
25 or they have in their portfolio?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1361
Trial
1 A. Well, there's plenty of studies that suggest,

2 and I think it's true that for most Americans, your
3 home is your biggest investment. That's a common
4 theme in a lot of discussions of personal finance.
5 Q. Right. And I want to address, if you would,
6 just for a moment the sort of limitations of the
7 study.
8 Are you saying that every house in the
9 Addicks and Barker Reservoir was degraded by 35.8
10 percent?
11 A. Not by a long shot. That's not what I'm
12 saying at all. That's an average number. There is a
13 range here. I think the low is 5 percent and the
14 high is 60 percent, but predominantly it's north of
15 30 percent.
16 Q. Okay. What does your analysis indicate
17 regarding the diminution in value of properties
18 located behind Addicks and Barker generally, taking
19 back and applying it to -- taking that analysis
20 you've done in the case study, thinking about the
21 cost, use and risk that you heard, you know, from the
22 different test property depositions you've read, what
23 does it tell you about the impact to the homeowners
24 themselves that are before the Court?
25 A. The homeowners themselves that were --

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1362
Trial
1 Q. Before the Court here, the Plaintiffs in this

2 case.
3 A. Well, it's severe. It's self-evident, but
4 the numbers bear out what is self-evident; it's
5 severe.
6 Q. In terms of the total dollar impact, did you
7 -- again, I'm trying to show -- I'm trying to be
8 clear with the limitations. You're not saying that
9 those dollars are in particular felt by on average
10 every single person; right?
11 A. This is phase one of a study. There needs to
12 be an additional phase two study to really assess the
13 damages so I can properly state what the damages are.
14 But this is a very significant kind of insight in
15 that general direction.
16 Q. Do you have any question in your mind that
17 there has been an impact on the homeowners vis-a-vis
18 their property values as a result of the government
19 impounding storm water in their homes?
20 A. There is no doubt in my mind.
21 Q. Okay.
22 A. None.
23 Q. The government offered a witness, an expert
24 witness called Dr. -- his name was Craig Landry.
25 Have you read his report, sir?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1363
Trial
1 A. I have.
2 Q. Are there -- well, first, without getting
3 into any kind of granularity, did you observe some
4 sort of irregularities, we'll call them, with
5 Mr. Landry's work?
6 A. Yes.
7 Q. Is he a licensed appraiser?
8 A. No.
9 Q. And did he use -- did he apply the USPAP
10 cost, use and risk approach to doing the evaluation
11 at all?
12 A. No, and if my memory is right, in his
13 deposition he didn't know what USPAP was.
14 Q. That's correct. Not until the second time.
15 A. All right.
16 Q. Are there any conclusions that Mr. Landry
17 drew with which you agree?
18 A. Well, oddly, yes. His -- his analysis
19 itself, from a regression mathematical perspective,
20 was very flawed. It was designed poorly. Fatally
21 poorly. But putting that aside, he somehow kind of
22 wandered into a similar conclusion that I had. He
23 showed like a 20, 30 percent drop in value, and they
24 never recovered back to its baseline value, which is
25 essentially what I'm saying.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1364
Trial
1 So somehow, in spite of the study being

2 horribly flawed statistically, he seems to be saying
3 a lot of the same things.
4 Q. And fundamentally the unremarkable conclusion
5 that a house that gets flooded is severely impacted;
6 is that right?
7 A. Right. And the key thing, though, it has a
8 big drop, and then it goes back. Well, that's not a
9 passive recovery. It's not like owning Apple stock
10 that while you're playing golf, it kind of goes back.
11 That recovery is because people are putting tens, or
12 on hundreds of thousands of dollars and sweat equity
13 into rebuilding their properties. He seems to not
14 get that point, but that's what's really going on to
15 account for part of the recovery. But even after
16 that recovery, it is still significantly below
17 baseline, and as I say, his own analysis supports my
18 baseline.
20 Pass the witness, sir.
21 THE COURT: Mr. Dain, cross-examination.
22 Well, let me ask Mr. Charest. Do you
23 proffer for admission PX660?
24 MR. CHAREST: I absolutely do, and I thank
25 the Court for the reminder.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1365
Trial
1 I'll offer 660 into the record.

2 THE COURT: All right. We'll reserve.
3 Mr. Dain.
4 CROSS-EXAMINATION
5 BY MR. DAIN:
6 Q. So let's talk first and bring up the table on
7 page 14, please. And I think you covered this on
8 your direct, but I just wanted to make sure.
9 There's a risk column here.
10 A. Right.
11 Q. And that's just a remainder number. That's a
12 number that results from the math that happens
13 elsewhere in the document.
14 A. That's fair.
15 Q. You're not opining that as to the -- as to
16 risk in connection with this; correct?
17 A. Correct. There is additional analyses to do
18 that or required to do that.
19 Q. Right. And you have made -- you have made no
20 attempt to determine whether the existence of a risk
21 factor that may exist in the area upstream of the
22 reservoirs or of the dams, you made no independent
23 effort to determine what risk factor exists in the
24 market since Harvey; correct?
25 THE COURT: Mr. Charest.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1366
Trial
1 MR. CHAREST: Objection; vague, and misstates

2 the prior testimony.
3 THE COURT: Well, it's technically
4 objectionable because it's compound.
5 Mr. Dain, why don't you just simplify
6 your question, and it would probably be a good one.
7 MR. DAIN: Okay.
8 Q. Did you make any determination as to whether
9 the existence of a risk factor has been diminishing
10 since after Harvey occurred?
11 A. That wasn't the -- that question was not
12 posed to me that way in this assignment. I can tell
13 you there was an intermittent calculation of risk,
14 but in terms of its diminishing over time issue, I
15 wasn't asked to study that.
16 Q. In fact, you weren't asked to opine as to
17 risk as all.
18 A. Well, that's fair, yes, you're right, and
19 that's why I keep referring to it as an intermittent
20 calculation.
21 Q. Understood.
22 Let's turn for a moment then to the
23 repair costs.
24 A. Sure.
25 Q. You don't present an opinion as to how much

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1367
Trial
1 it cost to repair each of the individual homes that

2 are reflected in this document?
3 A. Again, that's right. That's fair. I'm not a
4 licensed contractor. I'm not a licensed engineer. I
5 don't make those calculations.
6 Q. Right. You reached out to someone, either
7 you or someone in your office, or associated with you
8 reached out to the brokers, you asked the brokers
9 what the numbers were, and those are the numbers that
10 populate that field; correct?
11 A. That's right.
12 Q. Let's go to columns 26 through 34.
13 THE COURT: You mean row?
14 MR. DAIN: I'm sorry, row 26 through 34.
16 Q. BY MR. DAIN: All right. Now these are the
17 properties that are part of this table that were
18 repaired at the time of the -- at the time of the
19 post-Harvey sale; correct?
20 A. Right.
21 Q. And your assumption was that they had been
22 returned to what status?
23 A. Well, I don't think you can generalize
24 everything as falling into the same category, but
25 they had been generally considered to be repaired.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1368
Trial
1 Now in some cases that might be kind of

2 basic repairs, and in some cases they might have
3 actually rebuilt something bigger and better than
4 they originally started with. There's variations.
5 Q. Right, and we talked about this some at the
6 deposition.
7 A. Sure.
8 Q. You assumed that they were ready for
9 occupancy at least.
10 A. Right. Yeah.
11 Q. And then you don't know within
12 those -- within those several properties whether they
13 were returned or what we might call baseline, the
14 condition that they were before, and the repairs they
15 were returned to a condition better than baseline or
16 worse than baseline. You don't know that, do you?
17 A. That's fair, I don't know that. But they
18 were returned -- I think you put -- you put it well,
19 that they returned to an ability to be occupied.
20 Q. Okay. And now you calculate a total impact
21 figure from them, and for that calculation, you need
22 to use the repair cost number; correct?
23 A. The total impact number? Yes.
24 Q. Yes, see, let me just tee it up better for
25 you. If you're calculating total impact for the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1369
Trial
1 first 25 rows, you use the repair costs as well;

2 correct?
3 A. Right.
4 Q. And if you look at these properties in rows
5 26 through 34, what we see are five of the nine
6 properties here sold for something more than their
7 pre-Harvey value; correct?
8 A. I think that's right. Yeah, I'm just spot
9 checking.
10 Yeah, somewhere very close, but they
11 were a couple thousand dollars above, but what you
12 said is technically right.
13 Q. And you agree that the highest and best use
14 of the seven test properties that are the subject of
15 your Declaration is the same use as prior testimony;
16 correct?
17 A. They were -- well, essentially the short
18 answer is yes.
19 Q. Now, for the particular properties, you
20 have -- you identified seven properties in particular
21 in your report; correct?
22 A. Right.
23 Q. And again, you don't contend that the 35.8 or
24 6 number applies to those particular properties;
25 correct?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1370
Trial
1 A. No. I hopefully made that very, very clear.

2 Q. You did make that very, very clear.
3 And you have no opinion as to the costs
4 of repairs incurred at those seven properties.
5 A. Well, I'd have to look it up, but I don't
6 think so. Do you want me to look it up?
7 Q. No.
8 In fact, let me -- that kind of raises a
9 concern I have regarding the pending offer of the
10 exhibit.
11 Included in your report are some written
12 descriptions of the properties, the seven properties
13 at issue; correct?
14 A. Correct.
15 Q. And that information was simply provided to
16 you by counsel for the Plaintiffs; correct?
17 A. That's right, yes.
18 Q. That did not result from your doing
19 independent interviews or discussions with the test
20 properties -- with the owners of the test properties;
21 correct?
22 A. Not entirely fair, because I did inspect all
23 of them. A number of them I actually went inside and
24 some of them I met with the owners, so to -- to
25 portray that I just blindly took counsel's

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1371
Trial
1 information and put it in my report, that's not

2 really accurate.
3 Q. But what I'm saying is there is a written
4 description of the impacts in that document, and that
5 written description came from counsel for Plaintiffs?
6 A. It did, but I want to be clear that I
7 reconciled -- in every case, what I was told
8 reconciled with my on-site inspections in every case.
9 Q. Now, one of the test properties at issue, and
10 subject to your report is Lakes on Eldridge; correct?
11 A. I'd have to look it up. Do you have a page
12 number I can look up?
13 Q. I don't have a page number.
14 A. Well, I don't have them memorized. I'm
15 sorry.
16 Q. I'll represent to you that Lakes on Eldridge
17 is one of the seven properties. I have that in my
18 notes here.
19 A. Okay.
20 Q. Now, in order for a case study to apply to
21 other properties, there has to be commonality among
22 those properties; correct?
23 A. Well, I would agree with you if you're doing
24 a valuation, which I'm not at this phase, but in this
25 phase, I'm not so sure.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1372
Trial
1 Q. Well --
2 A. I mean they are all residential or
3 residentially related, and that's what all my case
4 studies were, so in this phase what I did was
5 completely appropriate.
6 Q. Appropriate under -- I mean it's not how you
7 would do an appraisal; correct?
8 A. I haven't done an appraisal.
9 Q. Correct. So it's not how you would have done
10 an appraisal. You say it's completely appropriate
11 and I'm just trying to bring us back again to the
12 standards that you're applying your opinion too.
13 A. Okay.
14 Q. So when you say it was completely
15 appropriate, you're not talking about a standard
16 established under the USPAP; correct?
17 A. Well, I'm not sure I'm entirely clear on your
18 question, but all my work is governed by the USPAP,
19 whether I'm doing an appraisal or rendering an
20 opinion, a final opinion or not. So USPAP is more of
21 an umbrella that I complied with, including in this
22 phase. But you're right, because I haven't rendered
23 opinions on value, USPAP goes even further when I get
24 into that phase.
25 Q. Okay. And for the properties and their

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1373
Trial
1 pre-flood values, you didn't conduct restricted

2 appraisals or actual appraisals for those properties
3 in the context of this phase one report, did you?
4 A. Well, we estimated their pre-flood value
5 based upon comparables, yes, for that limited
6 calculation, yes.
7 Q. Understood, but that's not the same thing as
8 providing appraisal valuations for those 34
9 properties that are achieved under the standards
10 applied by USPAP; correct?
11 A. I'm trying to but I just am not following
12 your question very well.
13 Q. In determining the pre-flood values here, you
14 did not follow standards, an established standard for
15 an appraisal under USPAP; correct?
16 A. I think what you're suggesting is the
17 complete opposite. USPAP, I am complying to USPAP in
18 the entirety of what I'm doing here. But because I'm
19 not rendering damage figures yet, this is more
20 illustrative in this phase to show severity, that's
21 the extent of it. But all of that's been done,
22 including the pre-flood values. It's been under
23 the -- the compliance to USPAP.
24 In other words, I don't wander in and
25 out of compliance to USPAP. I stay squarely in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1374
Trial
1 compliance with USPAP through the whole journey,

2 including this first phase of the journey.
3 Q. Understood, and maybe we're talking past each
4 other a little bit, so I'll just try it one more
5 time.
6 A. Sure.
7 Q. Those are not appraisals that are populated
8 in the pre-flood value column; correct?
9 A. Well, I guess somebody could argue that
10 because we use comparables and did this intermittent
11 calculation, they could be appraisals. They
12 certainly apply to USPAP, so you could call them
13 appraisals at that point in time for an intermittent
14 calculation, but whatever they are, they comply to
15 USPAP.
16 Q. Now I just want to cover a couple of areas,
17 because your report is pending, and may well come in.
18 But there's a couple components of your opinions, and
19 we talked about this at your deposition some, where
20 you talked about methodologies available as opposed
21 to methodology used.
22 Do you remember that conversation in the
23 deposition?
24 A. Yes.
25 Q. And isn't it fair to say that if we work

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1375
Trial
1 through, if you were to take a careful look at the

2 summary of opinions on pages 3 and 4 of your
3 Declaration, some of those involve situations where
4 you've identified methodologies available, but you
5 have not actually employed those methodologies in
6 your opinion that's presented in your Declaration;
7 correct?
8 A. That is correct. If I haven't, I want to
9 make it very clear, this is the first phase. We'll
10 call it phase one. If I'm asked to, and there's a
11 phase two, but there are various methodologies that
12 can and will be employed in the future.
13 Q. Right. So we're on the same page. I'm just
14 making sure that a reader of this document would
15 understand as he goes through this, some of the
16 differences of what's being presented here.
17 A. Okay.
18 Q. And so, for instance, you have not done a
19 mass appraisal at this point?
20 A. No.
21 Q. And you have not done a regression analysis;
22 correct?
23 A. No.
24 Q. But a regression analysis is the type of
25 analysis that can be used in looking at and assessing

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1376
Trial
1 market impacts?
2 A. That's right. I would just say regression
3 analyses is one of various tools to do a mass
4 appraisal. There are others.
5 Q. Fair enough.
6 MR. DAIN: Your Honor, I have no further
7 questions.
8 THE COURT: Mr. Charest, I don't have any
9 questions of Dr. Bell.
10 Mr. Charest.
12 BY MR. CHAREST:
13 Q. I've got four momentary stops. The first is
14 a deficiency of mine. I would like to show
15 Plaintiffs' 366 on the screen, please.
16 There are some questions, Mr. Bell,
17 about USPAP and appraisers. Did you complete an
18 appraisal certificate in connection with your work in
19 this case?
20 A. Yes.
21 Q. What are we looking at now?
22 A. That's the certification.
23 MR. CHAREST: We would offer Plaintiffs' 366
24 into the record, your Honor.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1377
Trial

2 (Plaintiffs' Exhibit 366 received in
3 evidence.)
5 THE COURT: Take your time, but let me make a
6 note.
8 Q. On the last topic you just spoke about, with
9 the regression analysis and mass appraisals, isn't it
10 true that for a regression analysis to be useful to
11 the Court, the regression analysis must be done
12 correctly?
13 A. Oh, absolutely.
14 Q. You were ask at the beginning of the
15 questioning about whether or not you studied the
16 diminution in risk over time in the areas upstream of
17 Addicks and Barker.
18 Do you remember that discussion?
19 A. I remember that question.
20 Q. What does the literature -- have you ever
21 seen any literature on the diminishment of risk,
22 where the risk that's associated with a flood goes
23 away after a matter of months?
24 A. I've never -- I haven't seen that.
25 Q. All right. Are you aware of any writings by

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1378
Trial
1 the government's expert, Mr. Landry, on the issue of

2 risk associated with flooding?
3 MR. DAIN: Your Honor, I object.
4 At this point we are beyond the scope of
5 my cross.
6 MR. CHAREST: It's literally the first topic
7 you talked about, sir.
8 THE COURT: What was that, Mr. Charest?
9 MR. CHAREST: The diminishment of risk was
10 literally the first topic he talked about, sir.
11 THE COURT: That's true.
12 Mr. Dain.
13 MR. DAIN: Well, he's past that general
14 reference and into presenting more rebuttal
15 discussion about Professor Landry, who he did talk
16 about on direct, and could have asked these questions
17 about it during the direct. There is nothing
18 triggered in my cross that --
20 The question is allowed.
22 Q. What writings, if any, do you recall that
23 Mr. Landry issued around the issue of risk and
24 diminishment of risk?
25 A. Well, Mr. Landry wrote an article which we

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1379
Trial
1 found -- for some reason he didn't cite it, as I

2 recall, in his work in this case. But it reflected a
3 risk factor of 7 percent, if my memory is right.
4 Q. Describe for the Court what you mean about a
5 risk factor of 7 percent in Mr. Landry's writings
6 that he omitted from his report.
7 MR. DAIN: My objection is to the
8 characterization of what was in the report or not.
10 MR. DAIN: I object to the characterization
11 about what was in his report or not. That's from
12 counsel.
13 THE COURT: This is a point as to disclosure.
14 Mr. Charest.
15 MR. CHAREST: I can rephrase if you like.
16 I'm just repeating what Dr. Bell said.
17 THE COURT: We're not going to strike what
18 Dr. Bell said.
19 You can rephrase your question.
21 Q. What did the literature that the government's
22 experts wrote about risk say, sir, to your memory?
23 A. My best recollection is that it indicated a 7
24 percent risk factor in perpetuity.
25 Q. Okay. And do you recall seeing a reference

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1380
Trial
1 to that writing on risk associated with the flood in

2 Dr. Landry's report in this case?
3 A. I don't recall seeing that.
4 Q. Yeah. The last topic I want to touch on real
5 briefly is that Mr. Dain discussed the repair of
6 homes that were associated with the chart that you
7 had there. Does the -- what is the fact -- does the
8 fact that a home is repaired diminish the impact of
9 the flood in the first place?
10 A. Well, no. I mean it's -- the germane issue
11 is there was a flood and property is damaged
12 immediately after the flood. I mean the fact that it
13 was later -- enormous amounts of money and time went
14 into repairing it doesn't magically make that issue
15 go away. You still have that reality in terms of
16 looking at the real estate damage economics.
18 No more questions.
20 MR. DAIN: Nothing further.
21 THE COURT: May the Court excuse Dr. Bell?
22 MR. CHAREST: For the Plaintiffs, yes, sir.
25 Dr. Bell, thank you for coming. I wish

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1381
Trial
1 you luck in traveling wherever you're going. I

2 appreciate you being here today though.
3 MR. CHAREST: He arrived at like 2:00 in the
4 morning.
5 MR. VINCENT: Your Honor, Larry Vincent.
6 The Plaintiffs will call Sue Strebel as
7 a representative of Lakes on Eldridge.
8 THE COURT: Thank you, Mr. Vincent.
9 Ms. Strebel, if you would please raise
10 your right hand to be sworn as a witness, the Court
11 would appreciate it.
12 Ms. Strebel, do you swear or affirm that
13 the testimony you're about to give at this trial
14 shall be the truth, the whole truth, and nothing but
15 the truth so help you God?
18 Please be seated in the witness stand,
19 and then state your full name for the record.
20 THE WITNESS: Sure.
21 My name is Susan Strebel.
22 THE COURT: Mr. Vincent.
23 MR. VINCENT: Thank you.
25 BY MR. VINCENT:

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1382
Trial
1 Q. Ms. Strebel, what do you do for a living?

2 A. I'm a conference manager for energy industry
3 events.
4 THE REPORTER: I'm sorry, ma'am.
5 Can you speak right in that microphone
6 and start again.
7 THE COURT: You might adjust where the
8 microphone is. You have a soft, pleasant voice.
9 THE WITNESS: Would you tell my husband that?
10 I'm sorry.
11 I'm a conference manager for energy
12 industry events.
13 Q. BY MR. VINCENT: Do you hold any degrees?
14 A. I do. I have a BS in international business
15 from Bowling Green State University, and an MBA from
16 the University of Phoenix.
17 Q. And where do you live?
18 A. I live at 5303 Lakeshore Ridge Court.
19 Q. Is that in Harris County?
20 A. Yes, it is.
21 Q. Were you living there during Harvey?
22 A. I certainly was.
23 Q. How long have you lived there?
24 A. Seven years.
25 Q. Are you married?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1383
Trial
1 A. Yes.
2 Q. Kids?
3 A. Yes.
4 Q. Do they live with you?
5 A. Not currently.
6 Q. You understand you're here today testifying
7 on behalf of Lakes on Eldridge; correct?
8 A. Homeowners Association, yes.
9 Q. Do you live in Lakes on Eldridge?
10 A. I do.
11 Q. What is Lakes on Eldridge?
12 A. It's a homeowners association.
13 Q. How is it governed?
14 A. How is it?
15 Q. How is it governed?
16 A. Governed?
17 It's governed by a board.
18 Q. Do you have a position with the board?
19 A. I am on the board; I'm the secretary.
20 Q. Do you know why Lakes on Eldridge was formed?
21 A. It was formed to just protect the amenities
22 in the community and look over the operations.
23 Q. Does Lakes on Eldridge own property in its
24 own name?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1384
Trial
1 Q. What kind of properties does it own?

2 A. What kinds of properties? It has the
3 clubhouse, the tennis courts, pools, playgrounds.
4 Various amenities like that.
5 MR. VINCENT: Matt, can we put up Joint
6 Exhibit 257?
7 Q. Ms. Strebel, have you seen this document
8 before?
9 A. Yes, I have.
10 Q. What is that document?
11 A. That's a list of all the properties that
12 Lakes on Eldridge owns.
13 MR. VINCENT: Your Honor, we would offer
14 Joint Exhibit 257.
17 Just give me a moment so I can catch up
18 with everybody.
19 THE COURT: All right. JX257 is admitted.
21 evidence.)
22 MR. VINCENT: Thank you.
23 Q. You understand that not all of Lakes on
24 Eldridge property is at issue today; correct?
25 A. Correct.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1385
Trial
1 Q. What Lakes on Eldridge property are you here

2 to testify about? What is the test property?
3 A. It is just the clubhouse complex, and that
4 covers the tennis courts, pools, volleyball court,
5 playground, and the clubhouse itself.
6 MR. VINCENT: Matt, can we have DX833?
7 Q. Do you recognize this image?
8 A. I do.
9 Q. What is that?
10 A. The purple outlined on the right is the
11 clubhouse complex.
13 DX833.
17 evidence.)
18 MR. VINCENT: At this point, your Honor, we
19 have furnished a demonstrative that's a little better
20 looking than DX833.
21 Matt, would you put that up?
22 THE COURT: And that's going to be PDX4?
23 MR. VINCENT: Yes, sir.
24 THE COURT: All right. Thank you.
25 MR. VINCENT: Purely for demonstrative

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1386
Trial
1 purposes.
2 Q. Ms. Strebel, can you describe what's in PDX4?
3 A. The property in the center is the whole
4 clubhouse complex.
5 Q. And is that the test property?
6 A. Yes, it is.
7 Q. What is on that test property generally?
8 A. Generally you've got the tennis courts on the
9 right. Behind that is the volleyball court. To the
10 left of the tennis court is a small playground.
11 Going up to the clubhouse there is a fountain in the
12 center, and then you've got the clubhouse itself. On
13 either end you've got storage for the swim meets that
14 go there, and then you've got the pool bathrooms and
15 an office. Then in the back there is a pool and
16 there is also on the right a kids' wading pool.
17 MR. VINCENT: Matt, would you put up JX291?
18 Q. Ms. Strebel, do you recognize this document?
19 A. I do.
20 Q. What is that?
21 A. That's the deed to the property.
22 Q. To the test property?
23 A. To the test property, yes.
25 JX291.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1387
Trial

4 evidence.)
5 Q. BY MR. VINCENT: Going back to the test
6 property --
7 Matt, would be put up LOE13?
8 -- what is that diagram?
9 A. That's the main building of the clubhouse.
10 Do you want me to describe it?
11 Q. Yes, please?
12 A. If you go in the front doors, you have the
13 main room. If you start on the upper left, that's
14 the caterer's kitchen. I don't know if you want
15 amenities; it has two ovens, two microwaves. The
16 caterer's kitchen has access to the outside, so you
17 can wheel right into it. You've got storage rooms,
18 and then we have two internal bathrooms.
19 If you look on the right up at the top,
20 that is the workout room, and then we have a flex
21 room, or what we call a flex room. It can be used
22 for yoga classes. It's used for exercise classes.
23 Sometimes small meetings; Bible studies, Boy Scouts,
24 Girl Scouts. They meet in there for a small group.
25 Q. Can you describe some of the furniture and

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1388
Trial
1 fixtures and work out equipment that it held?

2 A. The furniture in the main room is upholstered
3 furniture. We have multiple upholstered chairs and
4 we have four wooden tables with chairs, again, in the
5 meeting spaces or eating spaces.
6 In the workout room we have six machines
7 plus a universal. We have multiple free weights and
8 exercise balls and mats.
9 Then in the flex room we do have some
10 storage there, which allows us card tables and
11 folding tables and chairs to be used there. It also
12 covers or houses some of the kids' stuff for the play
13 room.
14 Q. Now you said the lounge is used for your
15 guests. Who uses it?
16 A. All the homeowners use it. We open it up to
17 events, community events; we hold at least one or two
18 a month. We also make it available for residents to
19 rent it out for birthday parties, graduation events,
20 and even wedding receptions have been there.
21 Memorial services have been there.
22 We have all sorts of outside activities
23 as well. We have a swim meets. We are involved with
24 a swim group league, and we have about 150 people who
25 will come for the swim meets.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1389
Trial
1 Q. How does having the communal properties, the

2 pool, the tennis courts, the volleyball, the
3 building, -- how does that benefit Lakes on Eldridge?
4 A. It really raises the enhancements. A lot of
5 that property is the first thing you see when you
6 drive in; it's across the lake. It just is beautiful.
7 It's attractive. It's a park-like community. Just
8 to have this resource, it really brings us together.
9 The bus stop is also out in front. It's kind of a
10 general meeting spot that everybody visits at some
11 time or another.
12 Q. Did you all even improve the bus stop?
13 THE REPORTER: I'm sorry. The question?
14 Q. BY MR. VINCENT: Did you all even improve the
15 bus stop?
16 A. We didn't have to improve it. We do have a
17 message board down there, and I do have pictures of
18 the water right up to the bottom, but it did not go
19 in, so we were fortunate about that.
20 Q. Nice segue.
21 Can you describe the impacts that the
22 Harvey flooding had on the test property?
23 A. It -- it was huge. What happened is just at
24 first, it was devastating and everyone was in shock
25 that it happened, and then those that had private

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1390
Trial
1 events scheduled there and planned had to quickly

2 scramble, because, you know, all of a sudden they
3 couldn't have their, you know, graduation party there
4 or whatever.
5 Then it was also hard because we had to
6 close the pool as well, because it was so close to
7 the clubhouse that it was a construction zone.
8 That's where the contractors were keeping all their
9 tools out on the back patio. So that, for over a year
10 was -- not quite a year, I'm sorry -- eight months
11 was closed and we had to rely on the surrounding
12 communities.
13 It affected, you know, the 749 homes
14 that are in the community, because they couldn't work
15 out, they couldn't meet there, you couldn't plan your
16 events there. We couldn't even really walk past
17 there, because of all the construction vehicles that
18 were around so long.
19 Q. How did it impact the tennis courts?
20 A. The tennis courts were also impacted. They
21 had quite a bit of debris on them, and you can't go
22 in and power-wash those like you would your driveway,
23 because they're a special service, so we did have to
24 have those cleaned.
25 The wind screens that we have there for

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1391
Trial
1 the residents are near the lake, and because the wind
2 sometimes comes across, were all down and had to be
3 either replaced or cleaned and put back up.
4 Q. And the volleyball court?
5 A. The volleyball court we had to pull out a lot
6 of the sand and replenish that because of the debris
7 that was left there. Nobody wanted to be barefoot in
8 what was left behind. It is a sand volleyball court.
9 Q. Did you repair or replace the furniture in
10 the main lounge room of the community hall?
11 A. The main lounge room, we had it all taken out
12 and evaluated. Because most of it has wood legs,
13 they either replaced the wood leg part, or they were
14 refinished, so the actual upholstered part was not
15 replaced because it had not been damaged.
16 Q. And what had to be done to the caterer's
17 kitchen?
18 A. In the caterer's kitchen everything had to be
19 pulled out, except for the upper cabinets. All the
20 appliances had to go out. We had to have all the
21 cabinets pulled out.
22 We tried to carefully take off the
23 granite countertops, so that they wouldn't have to be
24 replaced. We got most of them out, but two of them --
25 we also have granite on the bathroom counters as

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1392
Trial
1 well, and one of those got cracked, and one by the

2 sink got cracked, but we were able to reuse as much
3 as we could.
4 Q. What about the fitness room?
5 A. The fitness room was pretty much everything.
6 They took that out, and we were hoping that they
7 could just dry it out and evaluate everything, but
8 all the machines had gotten water into them, and I
9 guess that doesn't work very well with electronics,
10 so those had to be replaced.
11 That room took the longest to drain,
12 because it had a rubberized floor, and the water just
13 couldn't get out, and so it was quite a process to
14 remove that and then dry it out totally, and then
15 seal it back up.
16 Q. And how long was it before you could --
17 before you considered that clubhouse to have been
18 back into the condition it was right before the
19 flooding?
20 A. We got it back about eight months later.
21 Q. And what about the pool and tennis courts?
22 A. The tennis courts came back a little bit
23 earlier, because they were far enough away, so we
24 were able to get those -- I think it was just a
25 couple of months for that.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1393
Trial
1 The pool was closed the entire time,

2 because we just couldn't have kids running around
3 construction material.
4 Q. Has the fact that the Lakes on Eldridge
5 subdivision flooded, has that impacted the ability to
6 attract people to live or rent there?
7 A. Yes, absolutely. Of course before, I mean
8 you'd see a house on the market and it would be a
9 week or so and it would be gone. Now we've got signs
10 on there that have been up there for months.
11 It also impacted the leases. A lot of
12 energy companies had placed their employees there,
13 and we had learned that some of those companies
14 took --
15 MR. DAIN: Objection, your Honor. We're into
16 hearsay now.
18 MR. DAIN: Objection; hearsay, foundation.
19 THE COURT: On the other hand, the answer is
20 "we had learned," so that's testing the witness'
21 knowledge, and that's allowable.
23 So we had learned that several companies
24 had removed Lakes on Eldridge from their preferred
25 renters list, so that ex-pats were not coming into

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1394
Trial
1 our community any more.

2 Q. BY MR. VINCENT: Where were you during
3 Harvey?
4 A. I was on site.
5 Q. What did you do?
6 A. After the panic --
7 Q. Yes.
8 A. -- and the shock?
9 Well, we just, you know, tried to move
10 everything out. We just were -- it took a while to
11 really sink in that we had been flooded.
12 We were fortunate that we had kayaks, so
13 we didn't evacuate like most of our neighbors did by
14 boat, because we were told on TV and by all the
15 authorities that we had heard to stay put and not to
16 leave, and not -- to stay off the roads, so we
17 watched neighbors evacuate.
18 I took off in kayaks just to see, you
19 know, maybe it was all over, maybe not. And other
20 neighbors had heard that we were still on site, so
21 they asked us to check on their homes as well, and
22 that was when I started going out and realized that
23 the water was as bad as I thought it was, and it was
24 all over the neighborhood. I saw that even the
25 clubhouse, which was built up fairly high, had water

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1395
Trial
1 in it as well, which was pretty devastating.

2 Q. Ms. Strebel, we have produced to the other
3 side a PowerPoint presentation with some pictures
4 that we earlier marked as LOE17.
5 MR. VINCENT: Your Honor, I'm not going to
6 admit LOE17, but I have called out eight pictures
7 from that and provided separate copies to your clerk
8 and to the other side.
9 THE COURT: I have a question about what you
10 have identified as LOE13. It's a question for you
11 and Mr. Dain.
12 This is, I take it, the equivalent of a
13 demonstrative, but there's been a fair amount of
14 testimony by Ms. Strebel about it, so I'd like to
15 admit it as a demonstrative. May we do that,
16 Mr. Dain?
17 MR. DAIN: That's fine, your Honor.
18 THE COURT: The demonstrative will be
19 identified at LOE13.
20 MR. VINCENT: Thank you, sir.
21 THE COURT: That's admitted for a limited
22 purpose.
23 (Lakes on Eldridge Exhibit 13 was
25 Q. BY MR. VINCENT: Do you recall putting

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1396
Trial
1 together the PowerPoint presentation that we earlier

2 produced and I showed you that is LOE17?
3 A. Yes.
4 Q. And there are pictures in there that I pulled
5 out, and I showed you eight of them. Do you recall
6 that?
7 A. Yes.
8 Q. Did you take those pictures?
9 A. Yes, I did.
10 Q. When did you take them?
11 A. The dates are on there; probably the 27th,
12 28th, not the 29th, but the 30th. In that range
13 possibly.
14 Q. As to each of those pictures, do they fairly
15 and accurately depict the condition of the area that
16 you were photographing?
17 A. I believe they do.
18 Q. Did you take them from a kayak?
19 A. I'm sorry?
20 Q. Did you take them from a kayak?
21 A. Yes, I did.
22 MR. VINCENT: Matt, can we put up LOE17-1?
23 Q. What is that?
24 A. That's coming in the front gate, same view
25 that the tour had, only that was the view on I

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1397
Trial
1 believe it was the 27th or the 30th. That's coming

2 into the front gate and looking across to the
3 clubhouse.
4 Q. And the next, 17-2?
5 A. That was just when I was getting a little bit
6 closer and realizing, yep, it's under water.
7 Q. And 17-3?
8 A. That's the wading pool or the kiddy pool
9 right there, and that's pulling up closer.
10 Q. Is the kiddy pool the red circle?
11 A. The red circle, yes.
12 Q. 17-4?
13 A. That's pulling up to the back of it, and you
14 can see that there is water in the clubhouse.
15 Q. 17-5?
16 A. That's just showing there is a bit of wind
17 coming across, and so it was a little bit choppy, and
18 as you can see, that is the handrail to the pool
19 right there under water.
20 Q. The pool was submerged.
21 A. The pool was totally submerged.
22 Q. 17-6?
23 A. This is the playground on the front of the
24 clubhouse now looking north, and that is the
25 playground that had water in it. Beyond that is the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1398
Trial
1 tennis courts.
2 Q. What had to be done to the playground to
3 remediate it?
4 A. The playground, we had to power-wash it, and
5 we had put some disinfectant, because kids are on in
6 it and we just wanted to make sure that it was clean
7 and safe for everybody.
8 Q. How long was it before kids could use the
9 playground?
10 A. It was probably available in a couple months,
11 but because that whole area was in a construction
12 zone, nobody -- we went -- the kids in the play group
13 went to the other playground. This one wasn't really
14 used for almost the eight months. I don't know if
15 somebody had have been on it before.
16 MR. VINCENT: Next, Matt.
17 Q. What is this? LOE17-7, what does that show?
18 A. That's the volleyball court right there, and
19 even though it looks like a tennis court from the
20 level of the net, but yeah, that's -- that's pretty
21 high up. That's about six feet up or so, the top of
22 it.
23 Q. Well, and speaking of tennis courts, that's
24 next. 17-8, what is that?
25 A. That's the tennis courts, and if you look in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1399
Trial
1 the center of the picture, you'll see some white

2 lines going through there, and that's the top of the
3 tennis courts. And those -- yeah, that is the top of
4 the nets of the tennis court, and a floating garbage
5 can.
6 Q. Did you take other pictures not of the test
7 property during Harvey?
8 A. Yes.
9 Q. Do you recall providing a Declaration with
10 five pictures attached that we provided to the other
11 side months ago?
12 A. Yes.
13 MR. VINCENT: Can you put up Strebel 1,
14 please?
15 Q. And do you recognize this as your
16 Declaration?
17 A. Yes.
18 Q. And the page 3?
19 A. Yes.
20 MR. VINCENT: One more.
21 Q. Is that your signature?
22 A. Yes, it is.
23 Q. Turning to the first of the five pictures
24 attached, can you tell us where that picture is and
25 when it was taken?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1400
Trial
1 A. That's on the footbridge over Turkey Creek at

2 the south side of the Lakes on Eldridge property.
3 That shows -- I wish I had taken a video, but I
4 didn't, but it shows the water coming upstream. We
5 sat and looked at it, and all of a sudden it just
6 looked weird. Water is supposed to go downstream,
7 and it was coming upstream.
8 Q. Was it coming from the direction of the
9 reservoir?
10 A. Yes, coming up from Clay Road.
11 MR. VINCENT: Next, please.
12 Q. That's labeled Strebel 000002, dated August
13 27, 2017, attached to your Declaration. What is that
14 a picture of?
15 A. Well, that shows the water really coming up.
16 You can see in the foreground that it's all glassy
17 and still, and that the water closest to us, which is
18 south, was rushing in, so it shows that it's going
19 upstream, which is very strange.
20 MR. VINCENT: Next, please.
21 Q. And this?
22 A. And that's going under the bridge, and again,
23 it's going upstream.
24 MR. VINCENT: Next.
25 Q. Now this is the next day, August 28th,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1401
Trial
1 Strebel 000004. What does it show?

2 A. That's showing how high up the water is it to
3 that same footbridge. What it was, the day before,
4 was very narrow, and it was just expanding.
5 We were out walking, and this was after
6 Harvey, and we thought life was going to get back to
7 normal, but the water kept coming and we had second
8 thoughts about the normalcy.
9 Q. When you said it was after Harvey, what do
10 you mean?
11 A. Well, Harvey had come and gone, and the water
12 was bad, and it had rose, but it had gone down. And
13 now it's coming back, and we didn't understand why it
14 was coming back or where it was coming from.
15 MR. VINCENT: Matt, would you go back one to
16 Strebel 3?
17 Q. Is that a fair depiction of how much distance
18 it was to the bottom of the footbridge to the level
19 of the water?
20 A. Yes.
21 MR. VINCENT: Forward one.
22 Q. It's hard to see from here, but having been
23 there, are you testifying that the water had risen
24 from the 27th to the 28th?
25 A. Yes.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1402
Trial
1 MR. VINCENT: Next. Next, please.

2 Q. The last one, Strebel 000005, taken September
3 1. What is that a picture of?
4 A. This is when we were out kayaking, and we had
5 gone to some neighbors to get some more fans, and as
6 we were coming back, we found that it was easier just
7 to go near the bridge, because we could go all the
8 way across without having to ford over the bridge,
9 the risers of the bridge. This is the footbridge
10 that we had been on a couple days before, and it was
11 now impassable by boat.
12 Q. So to be clear, the bridge shown in pictures
13 3, 4, and 5, is the same bridge.
14 A. Yes.
15 Q. After Harvey and the flooding, can you tell
16 us how people feel about living in Lakes on Eldridge?
17 Do they worry about being flooded again?
18 MR. DAIN: I'm going to object to foundation
19 on this, your Honor. She's not really -- she is not
20 a 30(b)(6) representative here. She can talk about
21 her own knowledge.
22 MR. VINCENT: Let me ask this, your Honor,
23 for foundation.
24 Q. You're a member of the board; correct?
25 A. Yes, I am.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1403
Trial
1 Q. Does the board hold regular meetings?

2 A. Yes.
3 Q. Do those meetings include getting community
4 input?
5 A. Absolutely.
6 Q. Can you testify here, if the Judge allows
7 you, to what that community input is?
8 MR. DAIN: I have no objection.
10 THE WITNESS: It was a huge concern. The
11 weeks following Harvey, most residents would, you
12 know, greet themselves, and then the next line was
13 "Were you the one that flooded, or did you not
14 flood?" So it -- it -- kind of our lives centered
15 around Harvey in not a good way, and we were very
16 fortunate. Those that did not flood helped those
17 that did, and those that did, it was -- it was just
18 devastating, because the more you learned about it,
19 the more you realized that you had lost not just
20 peace of mind, but things in your lives and a way of
21 life.
22 But talking to other people, it was a
23 huge concern. People had evacuated, and they just
24 weren't sure if they were going to come back. They
25 just weren't sure what the future held right there.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1404
Trial
1 It was just too much in our face that, you know, life
2 changes in a second, and we had no control over it.
3 MR. VINCENT: Your Honor, taking a step back,
4 I'd like to move to admit photographs 17-1 through
5 17-8.
6 MR. DAIN: As demonstratives?
7 THE COURT: No, we have a foundation for it.
8 MR. DAIN: Okay. We have no objection.
9 The Declaration -- you're not offering
10 the Declaration; correct?
11 THE COURT: We haven't gotten there yet.
12 We're just dealing with the photographs.
13 MR. DAIN: Oh, okay. Yes, we're just going
14 to need to check that it's just those pages, but
15 other than that, we have no objection.
16 THE COURT: Well, let's just take the
17 photographs. Do you have any objection to the
18 photographs?
19 MR. DAIN: No.
21 (Lakes on Eldridge Exhibit 17 was
23 MR. VINCENT: Now, your Honor, I would move
24 the admission of Strebel 1, the Declaration and the
25 five photographs attached thereto.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1405
Trial
1 MR. DAIN: We'd object to the Declaration.

2 THE COURT: In a way -- I'm sorry.
3 Mr. Vincent.
4 MR. VINCENT: I didn't mean to interrupt.
5 THE COURT: In a way the Declaration is like
6 an answer to a Interrogatory or something like that
7 that's been signed by the proper party.
8 MR. DAIN: I think it goes to authentication,
9 and we're not objecting to authentication. I'm not
10 trying to be overly technical here, but I don't think
11 the Declaration comes in.
12 THE COURT: Do we have a date for the
13 declaration, Mr. Vincent?
14 MR. VINCENT: Yes, your Honor, it's
15 notarized, if I can get my hands on it.
16 October 16 of 2018.
17 Q. Ms. Strebel, you signed this Declaration?
18 A. Yes, I did.
19 Q. Under penalty of perjury, as it says.
20 A. (No response.)
21 Q. You signed it under penalty of perjury.
22 A. Oh, yes.
23 Q. Last question: The five pictures that are
24 attached thereto, do they fairly and accurately
25 depict the circumstances you were photographing on

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1406
Trial
1 the dates that are given on each one of the

2 photographs?
4 MR. DAIN: No objection, your Honor.
6 (Strebel Exhibit 1 was received in
7 evidence.)
8 Q. BY MR. VINCENT: To your knowledge has any
9 part of Lakes on Eldridge ever flooded before?
10 A. Not to my knowledge.
11 Q. By "before," I, of course, I meant before
12 Harvey.
13 THE REPORTER: I beg your pardon?
14 Q. BY MR. VINCENT: By "before," I, of course
15 meant before Harvey.
16 A. No.
17 Q. When Harvey came, was the LOE board concerned
18 that it would flood?
19 A. Before Harvey? No.
20 Q. In the days leading up to Harvey, say the
21 24th/25th of August, was the board concerned that
22 Lakes on Eldridge would flood?
23 A. No, we didn't really consider that.
24 Q. Why?
25 A. Because it never flooded before. It's built

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1407
Trial
1 up really high. We had no reason to believe that

2 waters would come in.
3 Q. Did anyone, to your knowledge, on the Lakes
4 on Eldridge board know that it was built in a federal
5 flood reservoir?
6 A. No.
7 Q. You understand that we are making a claim
8 under the Fifth Amendment takings clause; correct?
9 A. Correct.
10 Q. And you're not an attorney, so I don't want
11 to saddle you with that burden, but in your own words
12 what did the flooding of Harvey take from Lakes on
13 Eldridge?
14 A. Well, afterwards we learned that the
15 government had the right to store water on the
16 property and in the property, but that if they did
17 that, then they had to award just compensation.
18 Q. Do you know why they stored water on your
19 property?
20 A. Well, there's a lot of things going on here,
21 but it looks like they didn't have enough land to
22 store the water that they assumed would be there
23 during a flooding event.
24 Q. Before Harvey did you know the flood pool
25 extended by beyond the government-owned land at the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1408
Trial
1 reservoir?
2 A. Absolutely not.
3 Q. Did the government ever ask Lakes on
4 Eldridge's permission to store water there?
5 A. No.
6 Q. Does the government have a flowage easement
7 on Lakes on Eldridge's property?
8 A. No.
9 Q. Is Lakes on Eldridge concerned that its
10 property will flood again in the future?
11 A. We have a big concern now.
12 Q. Has Lakes on Eldridge and the board done
13 anything to investigate the possibility of flooding
14 in the future?
15 A. Yes, we've been talking with the MUD people,
16 one, to --
17 THE REPORTER: "Talking with the"?
18 THE WITNESS: Talking with Municipal
19 Utilities District 341 that operates in Lakes on
20 Eldridge, and we've been talking with them about how
21 can we communicate, how can we move this, because
22 they own the water and the lakes and Turkey Creek.
23 We've also established a flood committee
24 with several other communities, and we're trying to
25 figure out the best way to protect ourselves against

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1409
Trial
1 this and get a coalition going, so that we have some

2 impact.
3 We've also talked with the Harris County
4 Flood Control, as well as the Army Corps of Engineers
5 to establish relationships, so that if anything comes
6 again, we have a direct line of communication so we
7 can tell our residents whether to evacuate, if the --
8 you know, the government doesn't, or whether to stay
9 put, and so we can communicate. We've tried to set
10 up some communication policies so that we can
11 outreach to our residents if something like this
12 occurs again.
13 Q. BY MR. VINCENT: Did you get a communication
14 from a Corps that Lakes on Eldridge would flood
15 during Harvey?
16 A. No.
17 Q. Do you know when the Corps had an
18 understanding -- on what date it had an understanding
19 that Lakes on Eldridge would flood because of the
20 government's reservoir pool?
21 A. We were watching TV just like anybody else.
22 I think I heard it first from the Harris County Flood
23 Control. He said that some houses were expected to
24 flood, and that's when we sat up and took notice and
25 realized that we were the first houses north of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1410
Trial
1 Addicks, so he must be referring to us.

2 Q. And do you remember what day that was?
3 A. That had to be the 28th I guess.
4 Q. What did you do on the 28th when you heard
5 that?
6 A. Well, we still didn't really believe it
7 because we knew that we were north of Addicks, and --
8 and so we figured they would open the gates or do
9 something, but they were -- they hadn't at that
10 point. We did start looking around, and water was
11 coming up our street, and so we still didn't really
12 believe it, but we did start to move some things
13 upstairs.
14 Then it kept creeping up and creeping
15 up, and it just didn't seem like it was going to
16 stop, and so then we realized that flooding was a
17 real probability. At that point we just went into
18 overdrive and started moving everything upstairs from
19 our personal property. Unfortunately, I did not
20 consider the clubhouse and get over there to try to,
21 you know, save some of that property.
22 Q. Lakes on Eldridge is not an individual
23 homeowner, is it?
24 A. No.
25 Q. Can Lakes on Eldridge choose to move out of

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1411
Trial
1 the government's flood pool?

2 A. No, they never can.
3 Q. You mentioned that you work closely with the
4 MUD, Municipal Utility District 341. Are the -- can
5 you describe for the Court how the contours of that
6 Municipal Utility District compare with the contours
7 of Lakes on Eldridge?
8 A. The MUD actually owns the lakes that are in
9 Lakes on Eldridge, and they also own Turkey Creek and
10 the land right behind it, so we don't have any say on
11 what goes on with the lakes.
12 Q. I'm specifically asking about the area
13 covered by the MUD and the area covered by Lakes on
14 Eldridge. Are they similar?
15 A. Well, the MUD land is within Lakes on
16 Eldridge.
17 Q. What steps have you taken, in working with
18 the MUD, to allay your fears about future flooding?
19 A. We've been talking about all options about
20 what we can do. MUD was instrumental, hugely
21 instrumental, and we're indebted to them.
22 Following Harvey we all, you know, were
23 taking out everything from our houses, all of our
24 debris out of our, you know, buildings and
25 everything. You saw the pictures before. We had

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1412
Trial
1 similar things in our neighborhood, and it was the

2 MUD that was able to secure a contract, because of
3 the private roads, and to pick up all of that stuff
4 and take it out. So we worked with them quite
5 closely.
6 As far as going forward, we're just
7 trying to develop a plan and policy, so we've been
8 having regular meetings since then.
9 Q. Is Lakes on Eldridge willing to rely upon the
10 federal government or the Corps to give them warnings
11 about the next flood?
12 A. We would hope so, but we would like to have,
13 at least, something in place so that we can make that
14 assessment and keep our residents safe.
15 Q. And you're doing that in conjunction with
16 work with the MUD?
17 A. Yes.
18 MR. VINCENT: Matt, can you put up LOE7?
19 Just the first page.
20 Q. Can you tell the Court what LOE7 is?
21 A. This is a Hurricane Harvey Flood Response
22 Study.
23 Q. Who did it?
24 A. It was Benchmark Engineering.
25 Q. And did Lakes on Eldridge have any input in

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1413
Trial
1 the creation or formation or information that went

2 into this?
3 A. This was prepared by the MUD, so it was their
4 mandate and what they wanted to have done.
5 Q. Did you work with them in having it produced?
6 A. Absolutely. We gave them full access to
7 whatever they needed.
8 Q. Have you had any meetings or conferences with
9 the MUD about this study?
10 A. They offered to give a presentation to the
11 residents, and we opened up the clubhouse, once it
12 was open, or once it was back online, and they held
13 several conferences, so that they could present this
14 information to our residents.
15 Q. The information it contains, how does it --
16 how has it affected Lakes on Eldridge's feeling and
17 state of mind about its flooding fears and its plans
18 going forward.
19 A. Well, I think most people were shocked. I
20 mean we had all heard that, you know, the government
21 can store water on our property, but then to see that
22 we were actually in a floodplain and we had no
23 notion, and no one had ever told us, and there were
24 no signs around that this was what was happening. I
25 think it really drove everything home that, you know,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1414
Trial
1 we have a serious problem, because our property

2 values are forever lost because, you know, we're in a
3 floodplain. We didn't use our property for -- you
4 know, for most us, it was just months, but the peace
5 of mind is gone forever.
6 Q. And you, at the beginning of that answer,
7 said, you know, "We had been told we were in a
8 floodplain, or that we could be inundated." Had you
9 been told that or did you have that knowledge prior
10 to the Harvey flooding?
11 A. Absolutely not.
12 MR. VINCENT: Your Honor, we would move the
13 admission of LOE7.
14 MR. DAIN: Your Honor, this is a significant
15 study. It's hearsay. Is it being offered to prove
16 the contents of the opinion itself?
17 MR. VINCENT: No, it's being offered to prove
18 what she testified to; the basis of their fears going
19 forward and for their work to establish their own
20 communications and notification network, and, you
21 know, how Harvey has affected them. For that limited
22 purpose.
24 MR. DAIN: For those limited purposes, we
25 don't –

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1415
Trial
1 THE COURT: I'm sorry. Say it again.

2 MR. DAIN: For those limited purposes we
3 don't object.
4 (Lake on Eldridge Exhibit 7 was
5 received.)
6 THE COURT: Well, that's what the Court was
7 thinking about. Actually the study itself is
8 hearsay, and we don't have a sponsoring witness. On
9 the other hand, it is the basis for the testimony of
10 Ms. Strebel, so the Court will admit it for a limited
11 purpose, almost as a demonstrative.
12 MR. VINCENT: Thank you, your Honor.
13 No further questions.
14 MR. DAIN: I'll be brief, your Honor.
16 BY MR. DAIN:
17 Q. Ms. Strebel, we met out in the hallway
18 shortly before your testimony began; correct?
19 A. Correct.
20 Q. How long have you been a member of the board?
21 A. Just about three years.
22 MR. DAIN: Could we pull up Exhibit 6 -- or,
23 excuse me -- 834, please.
24 DX834 to be clear.
25 Q. Would you take a look at that document?

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1416
Trial
1 A. Uh-huh.
2 Q. And what is depicted in that document?
3 A. Well, the larger purple is the test case
4 property.
5 Q. And does that reflect Lakes on Eldridge, the
6 test case property, and some of the areas surrounding
7 that area appropriately and correctly?
8 A. Yes.
9 MR. DAIN: Okay. We move the admission of
10 834, DX834.
11 MR. VINCENT: No objection.
13 (Defendants' Exhibit 834 was received.)
14 Q. BY MR. DAIN: Now as a member of the board
15 are you aware that Lakes on Eldridge had flood
16 insurance?
17 A. They did have flood insurance as of July 1st
18 of 2017.
19 Q. So that was in place at the time Harvey hit;
20 correct?
21 A. Yes.
22 Q. Okay. And claims have been submitted to the
23 insurance company.
24 A. Yes.
25 Q. And payments have been made by the insurance

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1417
Trial
1 company.
2 A. Yes.
3 Q. And we have an understanding as to -- well,
4 has there been --
5 Was that good coverage? Did you get a
6 significant recovery from the insurance company?
7 MR. VINCENT: Objection, your Honor. I would
8 say that the amounts go to damages. I know the Court
9 has allowed some questioning on the existence of
10 payments.
11 THE COURT: That's true.
12 MR. VINCENT: Well, I would object as
13 irrelevant, any amounts, because we're not talking
14 about damages.
15 THE COURT: Well, we aren't going to get into
16 details on damages, but I'll allow a very limited
17 number of questions.
18 MR. DAIN: My question was actually formed
19 with that in mind when I said "significant," your
20 Honor.
21 THE COURT: You may answer.
22 THE WITNESS: I'm sorry. Can you repeat the
23 question?
24 Q. BY MR. DAIN: Whether the recoveries from
25 your insurance company have been significant.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1418
Trial
1 A. I'd have to look at the records because I

2 don't know the exact amounts or if they were in line
3 with the damages.
4 Q. So as secretary do you have an understanding
5 as to the amount of the recovery that you've gotten
6 from the insurance company to date?
7 A. A ballpark.
8 Q. What's the ballpark?
9 A. I think it was around $650,000.
10 MR. DAIN: Nothing further, your Honor.
12 Mr. Vincent.
14 BY MR. VINCENT:
15 Q. Ms. Strebel, who arranged for Lakes on
16 Eldridge to have -- to get that insurance policy,
17 what, 60 days before Harvey?
18 A. Actually I did.
19 Q. Why did you get -- did you go out and get a
20 flood insurance policy?
21 A. Our flood insurance policy typically expires
22 on June 30th, and so we were shopping around for
23 insurance policies, and this particular one -- we
24 weren't specifically looking for flood insurance, but
25 it had some strong things that we were looking for,

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1419
Trial
1 as well as flood insurance, and I thought given the

2 proximity to the lakes, that probably flood insurance
3 might not be a bad idea.
4 Q. When you began your answer, you said "our
5 flood insurance policy was expiring" --
6 A. Oh, I'm sorry. It was not flood; my bad. It
7 was our entire complex. LOE's insurance policy.
8 Q. So prior to this policy that took effect on
9 July 1 of 2017, LOE had no flood insurance?
11 Q. And if I understood you, it got flood
12 insurance because it came with the rest of the
13 package.
14 A. Correct.
15 Q. Did the recovery from the insurance company,
16 did it lessen the severity of the impact on Lakes on
17 Eldridge and what it suffered through Harvey?
18 A. No, it didn't. I mean it was a struggle to,
19 you know, provide all the documentation while you're
20 still dealing with flood issues yourself, and then
21 you have to provide all this documentation to the
22 insurance companies. The insurance company didn't
23 make it super easy, so it was an additional issue we
24 had to deal with constantly.
25 Q. And regardless of that struggle, just the

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1420
Trial
1 idea that because you could put the building and the
2 equipment back together, did that diminish the
3 suffering that you had on August 30th through
4 September 10th, through the time it got fixed until
5 the next May?
7 MR. DAIN: I'll object to leading.
8 THE COURT: What?
9 MR. DAIN: I'll object to leading.
10 THE COURT: Sustained.
11 Q. BY MR. VINCENT: How did, if any, the
12 recovery from the insurance company ameliorate the
13 suffering that Lakes on Eldridge felt because of
14 Harvey?
15 A. Well, the suffering still existed because we
16 still had to deal with it. It wasn't something that
17 we wouldn't have to deal with, because we weren't
18 flooded, but it was also just the hardship of having
19 to go through the restoration.
20 Q. And how did the check from the insurance
21 company decrease the severity that you suffered
22 because of the Harvey flooding?
23 A. Well, the checks didn't increase the value --
24 or not "the value" -- how we felt because of all the
25 things that we had to cancel, all the neighborhood

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1421
Trial
1 meetings that we didn't have, the events that we

2 didn't have. So it really kind of set the
3 neighborhood apart and all of our lives for eight
4 months.
5 MR. VINCENT: Pass the witness.
7 Any recross, Mr. Dain?
8 MR. DAIN: No, your Honor.
10 May the Court excuse Ms. Strebel?
11 MR. DAIN: Yes.
12 THE COURT: Okay. Soft voice and all,
13 Ms. Strebel, you did fine. Thank you very much for
14 coming and testifying.
16 MR. CHAREST: The next witness would be Mitch
17 Stewart, your Honor.
18 THE COURT: It's time for us to take our
19 recess for the day --
20 MR. CHAREST: I was going to ask the exact
21 same thing.
22 THE COURT: -- per the agreement we have
23 reached.
24 We'll reconvene at 9:00 on Monday, and
25 we will adjust the schedule as we talk about --

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1422
Trial
1 I'm sorry, go ahead.

2 MR. CHAREST: I do have one housekeeping
3 issue. We've asked the government to disclose their
4 order of witnesses, and as far as I know, they've
5 declined to do so. I would like the Court to tell us
6 that they should tell -- they should tell us their
7 order of witnesses, so we can start preparing for
8 their case-in-chief, sir.
9 THE COURT: How close -- well, they have
10 Mr. Thomas, but Mr. Thomas has also testified.
11 How close are you to you finishing?
12 MR. CHAREST: Well, we have -- I think we
13 will go through Monday and probably half of Tuesday,
14 based on my -- my calculations, so that's my best
15 guess. But the rest are largely test property owners
16 and one or two experts.
17 THE COURT: Mr. Shapiro.
18 MR. SHAPIRO: Thank you, your Honor.
19 This is an issue you addressed in the
20 pretrial order, so in paragraph 15 of your pretrial
21 order you required the government two days before we
22 begin our case to provide Plaintiffs with the order
23 in which we intend to call our witnesses. We intend
24 to comply with that.
25 THE COURT: That's obviously why I asked

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1423
Trial
1 Mr. Charest the question I just asked.

2 MR. CHAREST: Well, they also called a
3 witness today. I mean --
5 MR. CHAREST: They called a witness today, so
6 I think technically they started.
7 THE COURT: Well, that's true, but we all
8 agreed to take witnesses out of order.
10 THE COURT: This is a bench trial after all.
12 THE COURT: All right. Does that help
13 everybody?
14 MR. CHAREST: Not really, because I think
15 he's still not going to give it to us until I think
16 probably Sunday night, and we have the weekend.
17 THE COURT: Well, he might, but that's okay.
18 MR. CHAREST: Okay.
19 THE COURT: You might have a busy Sunday
20 night.
21 MR. CHAREST: I suspect I will anyway, but
22 thank you.
23 There's one more. I don't know what we
24 have for time, and maybe we can do this off the
25 record.

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1424
Trial
1 THE COURT: We'll get the time on the record.

2 David, can you wait just a moment or so
3 while we get the time?
4 THE REPORTER: (Nods.)
5 LAW CLERK: For the Plaintiff we are at 15
6 hours and 40 minutes.
7 For the defense, 11 hours, 31 minutes.
8 MR. CHAREST: Is it 15:40, and 11:30?
9 LAW CLERK: 11:31.
11 THE COURT: Every minute counts.
13 Thank you very much.
15 We're in adjournment until Monday
16 morning at 9:00.
17 LAW CLERK: All rise. Court is now in
18 recess.
19 (The proceedings adjourned at 4:09 p.m.)
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1425
Trial
1 C E R T I F I C A T E
2
3 I, DAVID M. LEE, do hereby certify that
4 the foregoing pages constitute a full, true, and
5 accurate transcript of the proceedings had in the
6 foregoing matter, all done to the best of my skill
7 and ability.
8 WITNESS my hand this 11th day of May
9 2019.
10
11 s/David M. Lee
12 DAVID M. LEE, RMR, CRR
13
14
15
16
17
18
19
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1426
Trial
1 ADMITTED EXHIBITS
2
3 JX PAGE DESCRIPTION
4 65 1248 5/8/2003 Popovici Property - Real
5 Estate Appraisal, 19927 Parsons Green
6 Ct
7 107 1288 2/12/2012 Warranty deed with vendor's
8 lien 6411 Canyon Park Drive (Micu
9 Property)
10 109 1312 2/29/2012 First American Title
11 Company Settlement Statement - Micu
12 Property
13 240 1250 2017-2018 Flood Policy Declarations
14 for Catherine and Alexander Popovici
15 257 1384 List showing all property parcels
16 owned by Lake on Eldridge Co
17 262 1222 Deed to property
18 291 1387 12/29/1995 General Warranty Deed from
19 Lakes on Eldridge, Ltd. to Lakes on
20 Eldridge Community Association, Inc.
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1427
Trial
1 PX PAGE DESCRIPTION
2 PDX3 1214 Map with circles
3 160 1258 HEC-FIA User's Manual; Generate
4 Structures from a Parcel Shapefile
5 163 1269 08/30/17 MMC; Consequence Evaluation
6 for A&B Dams
7 164 1276 09/06/18 MMC; Consequence Evaluation
8 for A&B Dams
9 168 1279 Bar Graphs; Structures Flooded;
10 Estimated Damages
11 366 1377 Bell Appraisal Certification
12 2036-12 1291 Images from DOJ Initial Disclosures
13 (1-30-2018), https://storms.ngs.noaa.
14 gov/storms/harvey/index.html#10/
15 29.6797/-95.4540
19 29.6797/-95.4540
23 29.6797/-95.4540
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1428
Trial

4 29.6797/-95.4540
5 2293 1198 noaa_atlas_14_vol._11_v.2_addicks
6 Copy 2.pdf
7 2294 1198 noaa_atlas_14_vol._11_v.2_barker Copy
8 2.pdf
9 2295 1198 Precipitation Frequency Data Server
10
11
12 DX PAGE DESCRIPTION
13 520 1320 03/01/2018 Certificate of Mold Damage
14 Remediation of Micu
15 601 1215 11/01/2018 Expert Report - Assessment
16 (page 36, of Hurricane Harvey Rainfall over
17 pages 38-222) Houston, Texas: August 25-31, 2017,
18 Dr. Barry Keim, Keim Consulting, LLC,
19 with Appendix: Storm Precipitation
20 Analysis Report, Applied Weather
21 Associates
22 833 1385 Map - Overhead aerial view of Lakes
23 on Eldridge and Wind property
24 locations
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1429
Trial
1 834 1416 Map - Streetmap view of Lakes on

2 Eldridge and Wind property locations
3 837 1247 Map - Overhead aerial view of
4 Popovici property location
5 838 1248 Map - Streetmap view of Popovici
6 property location
7
8
9 POPOVICI PAGE DESCRIPTION
10 5 1239 08/29/17 Photos - Exterior
11 Measurements of Water Level
12 25 1233 8/27/2017 Photograph of property
13 33 1246 9/1/2017 Photograph of property
14 52 1234 8/28/2017 IMG_7493.JPG
15
16
17 MICU PAGE DESCRIPTION
18 10 1324 07/24/18 Social Media Production
19 17 1301 Photos - Home Interior Flood Damage
21 17 1302 Photos - Home Interior Flood Damage
23 32 1298 Photograph of property
24 33 1298 Photograph of property
25 35 1299 Video of property

(301) 870-8025 - www.ftrinc.net - (800) 921-5555
1430
Trial
1 55 1304 9/14/2017 IMG_4114.JPG

2 56 1305 9/14/2017 IMG_4087.JPG
3 58 1303 9/14/2017 IMG_4110.JPG
5
6
7 LOE PAGE DESCRIPTION
8 7 1415 07/16/18 AECOM LOE Hurricane Harvey
9 Flood Response Study_Prepared for
10 Harris County Municipal Utility
11 District No. 341
12 13 1395 07/23/18 Gross Internal Area Map of
13 LOE Common Areas
14 17 1404 07/23/18 Harvey 2017 LOE
15
16
17 STREBEL PAGE DESCRIPTION
18 1 1406 10/16/2018 Declaration of Susan
19 Strebel
20
21
22
23
24
25

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

2019-05-10 Harvey - TT Day 5 (Kappel, Popovici, Buchanan, Micu, Bell, Strebel) - FULL

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2019-05-10 Harvey - TT Day 5 (Kappel, Popovici, Buchanan, Micu, Bell, Strebel) - FULL

Uploaded by

Copyright:

Available Formats

1 IN THE UNITED STATES COURT OF FEDERAL CLAIMS

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

For The Record, Inc.

1 handling the direct of Mr. Kappel.

For The Record, Inc.

1 Q. Mr. Kappel, what is your profession?

For The Record, Inc.

1 Q. Could you please give the page number of this

For The Record, Inc.

1 reconstruction to provide media information on

For The Record, Inc.

1 Q. Now Mr. Kappel, what is your current

For The Record, Inc.

1 worked on where you've been asked to calculate rarity

For The Record, Inc.

1 Q. And what document is located there?

For The Record, Inc.

1 a meteorologist would provide rainfall in time, space

For The Record, Inc.

1 Q. All right. So after a meteorologist

For The Record, Inc.

1 Control District, citizens observational networks

For The Record, Inc.

For The Record, Inc.

1 fit, which are numbered there, 74 of those, and then

For The Record, Inc.

For The Record, Inc.

1 blocked by a mountain or other obstacles. There was

For The Record, Inc.

1 is built off of and structured on the process

For The Record, Inc.

1 On the right side of the chart is the

For The Record, Inc.

1 SPAS methodology is in the field of meteorology?

For The Record, Inc.

1 rain gauge data and excellent radar coverage, the

For The Record, Inc.

1 accumulation, the first step is to define your area

For The Record, Inc.

1 Q. So for this third step, how is the number of

For The Record, Inc.

1 to determine if all of those individual gauge

For The Record, Inc.

1 okay, it's this particular probability distribution,

For The Record, Inc.

1 would use a climatological base map.

For The Record, Inc.

1 A. The final step is very simple. Now you take

For The Record, Inc.

1 you explained this methodology?

For The Record, Inc.

For The Record, Inc.

1 reconstruction of a rainfall and a rain event that

For The Record, Inc.

1 A. Yeah, the output is illustrated in a series