Levee lawsuits

Nursing home owners’ lawyer blames government for Katrina deaths

BY MICHAEL KUNZELMAN

ASSOCIATED PRESS WRITER
NEW ORLEANS — An attorney for the owners of a nursing home where 35 patients died in Hurricane Katrina’s aftermath says his clients have a right to present evidence that the government was responsible for the deaths.

Salvador and Mabel Mangano, the couple who own St. Rita’s nursing home in St. Bernard Parish, are charged with 35 counts of negligent homicide stemming from the patients’ deaths.

The couple’s attorney, James Cobb, said in court papers filed Thursday that his clients shouldn’t be blamed for the deaths because they couldn’t have anticipated that levees would break and flood the area.

“Instead, an engineering disaster, unknowable to them, left them vulnerable. The water came through no fault of the Manganos,” Cobb wrote in a 21-page memo to state District Judge Jerome Winsberg.

Attorney General Charles Foti, whose office is prosecuting the case, has said the Manganos should have taken steps to evacuate patients before the storm hit on Aug. 29, 2005. A spokeswoman for Foti wouldn’t comment, citing a gag order.

Cobb, however, says there is “credible, reliable and non-speculative evidence” that the state, parish and U.S. Army Corps of Engineers “caused the tragedies in Southeast Louisiana, including the tragedy at St. Rita’s.”

State and local government officials didn’t order the couple to evacuate the nursing home, Cobb said. And the Corps, he argued, designed and constructed the levees that failed to hold back flood waters.

“No assessment of the Manganos’ responsibility can be made without an understanding that, given a Category 3 storm passing to the east of New Orleans, the flood was not a natural and foreseeable event, but a disaster consequent to the failed projects of the Corps,” Cobb wrote.

The Manganos are due back in court on Tuesday. It’s unclear when Winsberg will consider Cobb’s argument that his clients have a right to present “evidence that points to the culpability of others and raises reasonable doubt about the charges against them.”

“It’s critical to us that we’re able to offer this evidence, and I think we should be allowed to,” Cobb said in an interview.

Each count of negligent homicide carries a sentence of up to five years in prison and a $5,000 fine.

Last modified: May 18. 2007 3:04P

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Tuesday, 06/05/07

Barge that Katrina heaved is trial’s focus

Residents blame Nashville company for destroyed homes

By MICHAEL KUNZELMAN
Associated Press

NEW ORLEANS — An eye-popping symbol of Hurricane Katrina’s destructive fury in New Orleans — a barge that landed on several homes in the city’s Lower 9th Ward — is at the center of a trial that started Monday in federal court.

The empty barge, nearly 200 feet long and weighing 705 gross tons, broke free of its moorings during the Aug. 29, 2005, hurricane and wound up on the other side of a levee breach on the east side of the Industrial Canal.

The barge’s rusted wreckage is gone, but a thorny legal dispute lingers: Was it an act of God or corporate negligence that sent the barge crashing into the neighborhood?

Lawyers for a group of Lower 9th Ward residents blame the barge’s owner, Ingram Barge Co. of Nashville, for the destruction. The company, meanwhile, is seeking to limit its liability for any damage that its barge may have caused.

Case divided into phases

U.S. District Judge Helen Berrigan, who is presiding over the barge litigation, has divided the case into phases. A trial started Monday for the first phase, which focuses on a narrow legal question: Did Ingram’s management have any “knowledge or privity” of alleged acts of negligence that could have caused damage from the barge?

David Sehrt, senior vice president and chief operations office for Ingram, testified Monday that the company wasn’t responsible for properly mooring the barge.

“If barges are in the care of customers, it is their responsibility to make sure they are safely moored,” he said.

Barge had been unloaded

In this case, Zito Fleeting delivered the barge to a marine terminal in New Orleans operated by Lafarge North America. Lafarge workers finished unloading cement from the barge early on Aug. 27, 2005 — two days before Katrina hit — and then moored it against a dock next to another barge.

Edward Busch, who was Lafarge’s assistant terminal manager, said he left a message with Zito that the barge was ready to be picked up.

“That was it,” he said. “Business as usual.”

Busch also called a towing company and asked for the barge to be shifted so that it was in a safer position on the dock. However, Busch said he couldn’t ask for the barge to be moved out of the terminal.

Busch said a man, later identified as an Ingram employee, visited the terminal before Katrina hit to inspect the company’s barges.

“I do not know what he did,” Busch recalled.

A key issue in the case is whether the barge is to blame for the levee breach or whether it floated through an existing gap. Ingram attorney Don Haycraft said several teams of experts have concluded that the barge wasn’t responsible for the levee failure.

Ingram argues its liability shouldn’t exceed its stake in the barge after it ran aground, estimated at about $17,000.

“This is similar to the White Star Line trying to limit its value to the lifeboats after the Titanic sank,” said Brian Gilbert, a lawyer for 3,000 residents affected by the breach.

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Care facilities lack buses for evacuation

By VICTOR HULL

victor.hull@heraldtribune.com
ST. PETE BEACH — On the verge of another hurricane season, transportation problems threaten to disrupt nursing home evacuation plans in Florida and other storm-prone states.

Lack of transportation proved fatal when Hurricane Katrina slammed the northern Gulf Coast in 2005, and caused problems for Florida during Hurricane Charley a year earlier. Despite those vivid lessons, many nursing home administrators and disaster planners say facility residents remain vulnerable because no solution has been found to guarantee rides when storms force evacuations.

The problem may even be worse, because the federal government has asserted claim over hundreds of private charter buses for emergency use. The claim leaves fewer buses available for nursing homes to use, participants at a national “Nursing Home Hurricane Summit” this week said.

“We call it our Achilles heel,” said LuMarie Polivka-West, the conference moderator and a policy expert for the Florida Health Care Association, a state organization representing long-term care facilities.

Representatives from Louisiana, Alabama, Georgia and other states agreed. They also cited communicating after a disaster, when cell phones and land lines typically fail, and deciding when to call for evacuations as other major hurricane challenges facing nursing homes.

The conference was sponsored by the Florida Health Care Association and a national nonprofit, The John A. Hartford Foundation, which is paying for a study on ways to improve nursing homes’ disaster preparedness.

A similar meeting last year led to the development of a new computer program designed to help facilities with emergency planning. The program is scheduled to be finished by year’s end.

One potential solution to the transportation problem, suggested by representatives from the private bus industry, calls for nursing homes to buy old buses retired from metropolitan transit authorities, such New York’s, Atlanta’s or Chicago’s.

Relatively cheap to buy, the buses could be maintained and driven for a fee by private bus companies, said Robert A. Watkins, vice president of Consolidated Safety Services Inc., a transportation quality assurance firm, who pitched the idea at the conference.

The biggest advantage: assurance the rides would be available when needed. In contrast, when Hurricane Charley made a quick turn toward Southwest Florida in 2004, many nursing homes had trouble evacuating because several had contracted for service with the same bus companies, which could not meet the demand.

Others had counted on using ambulances, but those vehicles were unavailable because hospitals needed them.

“It’s a common-sense solution to a very big problem,” Watkins said, adding that the buses typically cost $2,000 or less each and estimated annual maintenance is less than $1,000.

Too many details remain for the idea to help much this year, including who would pay for the buses. Watkins said nursing homes could pay private bus companies to maintain their vehicles, or lease them to the firms on the condition that they be available on call.

Nursing home industry representatives argue that it makes more sense for the government to buy a fleet of used metro buses and make them available for emergency use.

“I think it’s a viable consideration for FEMA,” said Polivka-West, referring to the Federal Emergency Management Agency. “We think this should be a national response, instead of an individual (nursing home) facility response.”

The nursing home industry has expressed resentment toward the federal government, which last year signed contracts with private companies for the right to use 1,500 buses in an emergency. In addition, nursing home representatives said FEMA has reserved the right to take control of other buses if needed.

“We didn’t have (access to) enough buses in the first place,” said Janice Zalen, a director with the American Health Care Association, a national organization of long-term care facilities.

Reliable transportation is critical for the life-and-death decision of deciding when and if to evacuate nursing homes, whose residents often have serious health problems that, in years past, would have been handled in hospitals.

Because a move can be deadly for these older, frail residents, facilities do not want to evacuate unless absolutely necessary. Delaying an evacuation decision requires that the ride be available and that it be equipped for people with medical needs — including air conditioning.

Charlotte, Manatee and Sarasota counties alone have approximately 6,000 nursing home beds in 45 facilities. The region’s 91 assisted living facilities, which also house residents with some medical needs, have nearly 6,300 beds.

The Hartford Foundation’s Amy Berman noted that of 1,330 people who died from Hurricane Katrina, 71 percent were over age 60 and almost half were over 75.

Officials have resorted to using military transport and other unconventional resources. One of the worst tragedies occurred in 2005, when 23 assisted-living home residents in Texas died in a bus that burned during an evacuation before Hurricane Rita. The bus had an expired registration and was pressed into service during the evacuation, according to testimony at a National Transportation Safety Board hearing.

Even when enough buses are available when needed, when a storm threatens, drivers do not always show up.

Joseph Donchess, executive director of the Louisiana Nursing Home Association, said he has been assured by state and federal officials that enough buses will be available if needed this year. But he expressed skepticism, given that his pleas for state police to help escort nursing home evacuees through pre-storm traffic jams have been rejected.

Officials from Alabama and Mississippi said they are also concerned about getting nursing home evacuees through traffic as coastal residents flee.

Ken Presley, vice president of the United Motorcoach Association, said there are 35,000 to 38,000 large buses nationwide. The issue is getting them where they are needed in an emergency.

Because they are so expensive — more than $400,000 — operators can’t just let them sit. Ideally, they’re booked nearly 80 percent of the time. Idling them for emergency use does not make business sense, Presley said.

Nursing homes, on the other hand, do not want to pay for them in the absence of a storm. They want them available on 24- or 48-hour notice.

Operators “can’t afford to do that based on a ‘might call,'” Presley said. “Long-term care facilities are going to have to spend some money to make it work.”

Watkins, whose firm helps ensure the safety of buses used to transport the military for the Department of Defense, agreed. He said facilities are going to have to look out for themselves, rather than waiting for the government or someone else to solve the problem.

“Everybody looks to a huge solution from the sky,” Watkins said. “It’s not forthcoming.”

Tom Kelly, CEO of the Village on the Isle retirement community in Venice, has come up with his own solution. He’s arranged to use buses from area churches, providing for 90 seats for residents in an evacuation.

“There should be some government-private collaboration,” he said.

Last modified: May 23. 2007 4:58AM