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What to Expect When You’re Expecting

El Niño claims and litigation will hinge on experts, so preparation is key.

February 22, 2016 Photo

This winter’s El Niño is expected to be one of the most powerful yet. The weather condition occurs when water temperatures in the equatorial Pacific Ocean become warmer than normal. It is the opposite of La Niña, which occurs when the Pacific Ocean equatorial temperatures are cooler than normal. These warm waters impact air pressure, trade winds, and rainfall patterns throughout the Pacific Ocean, Pacific Rim, and beyond.

Meteorological experts are in agreement that the 2015-2016 weather events caused by El Niño likely will prove to be the strongest of the past 65 years and bring potentially devastating weather conditions to California. The result will be damage and litigation, and the results of the litigation will depend heavily on expert analyses. Therefore, early expert witness retention is critical to understanding the causes of the earth movement and the damages.

Lessons of La Conchita

After the catastrophic landslides in the late 1990s, the case Thierry Brown, et al. v. La Conchita Ranch Company, et al., proceeded to trial. At trial, the defendants successfully established that their agricultural activities were not a substantial factor in causing the earth movement at issue. Accordingly, the defendants and related entities were awarded a defense verdict.

The expert witnesses demonstrated by scientific studies, data, and a number of historical influences that La Conchita, which is located on the coast just south of Santa Barbara, was a geological hazard waiting to happen. The experts showed that La Conchita is a tectonically active area with high uplift rates that have occurred for several million years. In 1992, the U.S. Geological Survey documented that the uplift rate was approximately 100 feet per 6,000 years and had not varied much over the last 6,000 years. The hillsides and sea bluffs in the La Conchita area are made up of relatively young, poorly consolidated sediment that erode easily as they are rapidly uplifted. An earthquake fault passes through the cliff face immediately behind the town of La Conchita, with folding and disruption of the sediment adjacent to the fault. The recurrence interval of earthquakes on the fault is less than 200 years, and there have been numerous earthquakes on the fault over the last several thousand years.

Remote sensing interpretation demonstrated that downslope movements have been occurring at La Conchita since 1910, when the first aerial photographs were taken. In order to determine the nature of groundwater occurrence beneath La Conchita Ranch, how the groundwater is recharged, and whether the defendant’s irrigation played a role in the landslide, a team of experts conducted an extensive exploration and study effort. That team examined the following:

  • The geology of La Conchita.
  • The irrigation practices of the uphill defendant.
  • Whether irrigation water applied peculates to depth.
  • The presence of groundwater at different depths beneath defendant’s uphill property.
  • The chemistries of various waters, including surface water applied to La Conchita Ranch, groundwater at different depths below La Conchita Ranch, and spring water in and above the town.
  • The history of the previous earth movements in the La Conchita area.

The ground exploration conducted by the experts included the following:

  • Drilling multiple completion monitoring wells to characterize the groundwater at different depths.
  • Installing shallow wells and probes to detect the movement of surface water to depth.
  • Regular sampling of water levels and quantities.
  • Chemical characterization of surfacing groundwater, including age, mineralization, and selected isotopes.
  • Well tests in critical areas to determine aquifer properties and hydraulic connection of aquifer to springs.
  • Photogeologic interpretation of history of downslope movements at La Conchita.

As a result of the studies and monitoring, it was demonstrated that the cause of the landslides and slope failures behind the town of La Conchita, and the reactivation of ancient landslides, was a natural geologic process that defendants had not contributed to.

Prior El Niños

The storms generated from 1998’s El Niño are considered the most powerful in recent history. The winter storms that year delivered to Southern California and the Sierra Nevada a snow pack that doubled the typical annual snowfall. It also soaked California with a series of medium to light rain events that, individually, were not considered strong ,but because they were delivered in back-to-back-to-back succession, they demonstrated much greater power.

The soaking effect of the delivery of the storms was a substantial factor in the cause of many of the earth movement events and resulted in significant flooding, mud flows, and landslides. This, in turn, caused significant and widespread property damage, injury, and deaths. By comparison, this year’s El Niño is predicted to be even stronger.

In February 1998, in particular, a number of successive rainfall events caused an estimated $550 million in damage and killed 17 people, 10 of whom were killed by another landslide in the town of La Conchita. In all, 35 California counties were declared federal disaster areas, and there were over 300 earth movements, mudflows, and landslides in Southern California alone.

Delivery Date

After years of significant drought and water shortage, this year’s El Niño promises to deliver a significant amount of rain to a terrain that is very vulnerable. The damage to property and lives caused by landslides, mudflows, flooding, and erosion will be substantial. The varying magnitudes of the events likely will impact individuals, single homes, multiple residences, and possibly even entire towns, as they did in the past. The resulting litigation will be considerable, and defendants will be municipal, corporate, and individuals, as they have been in the past.

All earth movement litigation is ultimately expert witness driven. A team of consultants and experts often is needed, depending on the magnitude and causes of the earth movement. The team of consultants can include civil engineers, structural engineers, field geologists, engineering geologists, geotechnical engineers, groundwater hydrologists, geohydrologists, surface flow experts, irrigation specialists, and even agricultural experts. The consultants and expert witnesses and the data collected together with historical and scientific studies are critical to understanding the proximate causes in any earth movement case.

As shown above, the experts often are called upon to study both the historical and present geologic features and soil complexities of the underlying earth mass and can employ various investigative techniques to determine the historical origin and present causes of a particular earth movement. It is important for claims professionals and counsel to understand and work closely with experts to prepare a given case for mediated resolution or success at trial.

As can be seen, experts are critical in assessing the causes of the earth movement and employ a number of analytical tools to do so. Examples include soil probes, deep borings, multiple completion wells, inclinometers, aerial photography, and even nuclear probes. Agricultural experts can be employed to study the nature and effect of induced irrigation over time and the amount of the irrigation used by a defendant uphill landowner. In La Conchita, experts were able to study evapotranspiration data in relationship to the irrigation applied, and were able to conclude that the defendant employed what is known as “deficit irrigation,” which means the orchard trees on the property were actually removing more water from the hillside than if they were not there.

Final Preparations

In earth movement, as in all litigated matters that are expert witness driven, claims professionals and counsel must carefully select the best experts to ensure success. Here are three areas of importance to consider when selecting an expert in earth movement matters:

  • The expert’s background knowledge and skill in the area. This is the most important aspect in selecting the expert witness. This does not mean that the expert has to have litigation experience. For example, some of the most credible and objective experts are those in the particular field that actually work or teach in the subject area. In the La Conchita matter, two of the experts had never been retained previously and had never testified in deposition or trial before, but were the best and the brightest in their field of study and work. Triers of fact are receptive to these experts because they rightly perceive them as unfettered, objective, and not “litigation tainted.”
  • The work performed and data reviewed. Experts are only as good as the matters upon which their opinions are based. This means that the testing mentioned above, such as the exploration and study effort as to the cause and genesis of the earth movement, must be objectively based upon derived data. When the data upon which the opinion is given is objective, the conclusion is unimpeachable.
  • The expert’s opinion. When the expert has the credentials, experience, and background in the particular area and also has done the necessary collection of objective data, testing, research, and analysis of that information, his opinion is objective, credible, and, again, unimpeachable. In land movement cases, the experts are true scientists, and, therefore, the scientific method is most important. In sum, the expert must form the hypothesis, test that hypothesis by looking at all of the objective data and evidence, then come to a scientific conclusion.

Claims professionals and counsel must sometimes think outside the box in selecting the best experts to ensure success in earth movement matters, because whether we like it or not, El Niño is already here and ready to wreak havoc.  

About The Authors
Frank Sabaitis

Frank Sabaitis is founding member of Sabaitis Lunsford & Moore. He has litigated all types of earth movement and flood cases dating back to the early 1990s, including two of the largest cases in California to go to trial. He has been a CLM Member since 2010 and can be reached at (626) 696-2400,  fsabaitis@sabaitislaw.com

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