USA v. Bd Of Comm Ham Co, et al

Filing 2044

ORDER that the Court denies DG AND PG RENTAL PROPERTIES, LLC, DANIEL R.GERTZ & ASSOCIATES, INC. D/B/A THE GERTZ CO., AND BID AND WIN IT, LLC'S REQUEST AND AMENDED REQUEST FOR REVIEW 932 1867 filed in this matter. Signed by Magistrate Judge Karen L. Litkovitz on 12/5/2022. (art)

Case: 1:02-cv-00107-MRB-KLL Doc #: 2044 Filed: 12/05/22 Page: 1 of 82 PAGEID #: 53245

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs,
vs.
BOARD OF HAMILTON COUNTY
COMMISSIONERS, et al.,
Defendants.

Case No. 1:02-cv-107
Barrett, J.
Litkovitz, M.J.
ORDER RE: REQUEST
FOR REVIEW BY
DG AND PG RENTAL
PROPERTIES, LLC, DANIEL R.
GERTZ & ASSOCIATES, INC.
D/B/A THE GERTZ CO., AND
BID AND WIN IT, LLC’S
REQUEST AND AMENDED
REQUEST FOR REVIEW
(DOCS. 932 AND 1867)

This matter is before the Court on the Request for Review of the denial of a Sewer Back
Up (“SBU”) claim by DG and PG Rental Properties, LLC (“DG and PG”), Daniel R. Gertz &
Associates, Inc. d/b/a The Gertz Co. (“Gertz Co.”), and Bid and Win It, LLC’s (“Bid and Win
It”, and collectively, “Claimants”) Request for Review and Amended Request for Review (Docs.
932 and 1867), the Metropolitan Sewer District of Greater Cincinnati (“MSD”)’s Response to the
Request for Review (Doc. 1866), the closing argument briefs of the parties (Docs. 2003 and
2004), and the parties’ briefs in response (Docs. 2022, 2023). The Court held an eleven-day
evidentiary hearing on Claimants’ request for review.
Claimants’ request for review is filed under the Sewer Backup 1 program (formerly
known as the Water-in-Basement [WIB] Claims Process Plan) (Doc. 131, Consent Decree,

The “Water-In-Basement” program has been renamed the “Sewer Backup” program to more accurately reflect
MSD’s responsibility for sewage backups caused by inadequate capacity in MSD’s sewer system. See Doc. 452 at
4; Doc. 454 at 16.
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Exhibit 8). The Plan states in relevant part:
Subject to the requirements of this Plan, occupants who incur damages as a result
of the backup of wastewater into buildings due to inadequate capacity in MSD’s
Sewer System (both the combined and the sanitary portions) can recover those
damages. This plan also provides a means for occupants to recover damages arising
from backups that are the result of MSD’s negligent maintenance, destruction,
operation or upkeep of the Sewer System. The Claims Process is not intended to
address water in buildings caused by overland flooding not emanating from MSD’s
Sewer System or caused by blockages in occupants’ own lateral sewer lines.
(Id. at 1). Property owners who are dissatisfied with MSD’s disposition of a claim under the
SBU program may request review of the decision by the Magistrate Judge, whose decision is
binding and not subject to any further judicial review. (Docs. 154, 190).
I. Background
Claimants owned the commercial property located at 2700 and 2760 Highland Avenue,
Norwood, Ohio 45212 (the “Property” or the “Gertz Property”). 2 The Property, while it has two
street numbers, is a connected structure that fronts Highland Avenue. The Property was
connected to MSD’s Sanitary Sewer and the Norwood, Ohio Storm Sewer (the “Storm Sewer”).
Claimants seek compensation for personal and real property loss sustained at the Property on
August 28, 2016, due to an alleged public Sanitary Sewer backup. On October 25, 2016,
Claimants filed an SBU claim with MSD. MSD denied the claim, finding the damage was not
caused by a surcharge of the public Sanitary Sewer but rather by a surcharge of the Norwood
Storm Sewer, potentially in combination with overland flooding and issues related to privately
owned building sewers. (MSD Ex. 11). Claimants disagreed with MSD’s decision and filed this
appeal. (Doc. 932).

2

DG and PG purchased the Property in November 2013, then sold the Property in August 2020.

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II. Evidence
The Gertz Property
The 58,000-square-foot Gertz Property includes three levels, with the lowest, basement
level below street grade. The Property housed Bid and Win It and The Gertz Company. Bid and
Win It, which occupied 90% of the building space, utilized the space as an online distribution
auction house, a retail warehouse and showroom, and office.
Claimants purchased the Property in 2013 and renovated the building. The renovations
included re-routing the exterior downspouts to discharge into the main public Storm Sewer and
to the street, the professional installation of new windows and doors, and laying new concrete at
the exterior of the building, including ramps with a positive flow away from the buildings. (Doc
1962 at PAGEID 48729; Doc. 1963 at PAGEID 48811, 48833-34). Dan Gertz, a licensed
plumber, testified that after he rehabbed the building, all of the building’s external downspouts
connected to the main Storm Sewer system. (Doc. 1964 at PAGEID 48922, 48927). Mr. Gertz
further stated that the exterior of the building was consistently kept free of leaves and debris and
maintained in good condition. (Doc. 1964 at PAGEID 48892).
The August 28, 2016 Rain Event
On August 28, 2016, the area in which the Gertz Property was situated experienced a
major rain event from 5:00 p.m. to 9:30 p.m. (MSD Ex. 39 at 5). The area received
approximately four to five inches of rainfall in a short period of time, with the peak rainfall
occurring around 6:30 p.m. and rainfall ending around 8:00 p.m. (Doc. 1965 at PAGEID 49160;
Doc. 1967 at PAGEID 49551; MSD Ex. 39 (identifying peak rainfall at 6:30 p.m. with peak flow
between 6:45 to 7:30 p.m.); Doc. 1966 at PAGEID 49216). A 55-second video of the rain event
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(“rainy day video”) filmed at 7:58 p.m. showed water ponding and flowing downstream on
Highland Avenue in the vicinity of the Gertz Property. (Gertz Ex. 40).
Jody Beebe is the Operations Manager for Cohen Recycling, which is directly across
Highland Avenue from the Gertz Property. On the day of the event, Mr. Beebe observed 3
rainwater travel overland and down Highland Avenue “like a river” and enter the Cohen parking
lot. (Doc. 1965 at PAGEID 49131).
Discovery Of Flooding And Observations
The day after the August 28, 2016 rain event, Mr. Gertz went to the Property. He
smelled an odor of feces and observed remnants of toilet paper around a floor drain in the first
floor assembly room. (Doc. 1964 at PAGEID 49005). Mr. Gertz observed water on the first
floor in the area outlined by blue:

He did not observe water on the first floor outside that area. The area that Mr. Gertz circled to
show water infiltration on the first floor encompassed the trench drains (circled in orange). The
area did not encompass the restroom floor drain on the West side of the building (highlighted in
yellow). (Doc. 1963 at 48835; Gertz Ex. 2A).

Cohen Recycling had cameras filming the interior and exterior of the Cohen Property, and Mr. Beebe viewed the
live feed from those cameras on his laptop at home.
3

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On August 30, 2016, Peggy Gertz went to the Property for the first time after the rain
event. When she entered the building, she smelled an odor of raw sewage. The floor was damp
in certain areas, and she observed toilet paper residue and raw sewage residue around the legs of
the baby cribs and other furniture items in the basement. The sanitary floor drain in the
basement was located closest to Highland Avenue, where the baby cribs and changers were
located. Mrs. Gertz also observed toilet paper residue on the main floor of the building near the
kitchen and bathroom areas.
Following the flooding, some 2,800 photographs were taken of the Property. Mrs. Gertz
took some of the photographs a few days after the event, and ServPro 4 staff took the rest 24 or
more days after the incident. (Doc 1962 at PAGEID 48731-32). According to Claimants, many
of the photos depict toilet paper residue or remnants on furniture and other items.
Gary Gochoel was the president of an electrical contracting company located at 2764
Highland Avenue, two doors downstream of the Gertz Property. He visited the Gertz Property
two days after the rain event. In the basement, he smelled a slight, damp odor of sewage or wet
cardboard. He observed a water ring around the room and estimated the water rose eight to ten
inches above the basement floor. He observed mud and dirt on the floor and what he described
as small pieces of toilet paper stuck on some furniture legs, the walls, and the floor and near the
floor drain. Mr. Gochoel did not notice an odor on the first floor of the Property. He observed
mud or dirt on the first floor of the Property but not toilet paper. (Doc. 1965 at PAGEID 4915154).
Dr. John Barton, Ph.D., P.E., is Principal Engineer in MSD’s Flow Monitoring Program

4

As explained below, ServPro is an MSD contractor who was hired to clean the Property.

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Management department. Dr. Barton testified that the white dots and residue lines depicted in
the photos he reviewed are consistent with the hundreds of pictures of Styrofoam in the
basement. Photographs depict materials onsite that included packing material, Styrofoam,
cardboard, or paper that were soaked and damaged by the flooding.
Mike Pittinger was MSD’s former Wastewater Collection Superintendent. He is a
professional engineer and expert in the civil engineering field of public sewer and backup
investigations. Mr. Pittinger testified that Storm Sewers take in overland flooding, which
includes debris from roadways, garbage, paper products, chemicals, and grit. (Doc. 1962 at
PAGEID 48713). At the time the photographs were taken, cleaning was in progress, items were
moved, and drywall was being cut. (Id. at PAGEID 48738, 48732).
Cleaning Of The Property By ServPro 5
ServPro is a restoration company for residential and commercial properties and an MSD
contractor. Its restoration work includes remediation for sewer losses. Derek Gilbert, a ServPro
employee, testified that he cleaned over 200 homes in Cincinnati, including the Gertz Property,
over a two week period after the August 2016 rain event. He observed excrement, toilet paper,
and feces on the floor of the Property, especially near the furthest part of the first floor of the
building. According to him, the basement flooding reached almost one foot high in some places.
He did not test either the water or the debris he saw on the property. (Doc. 1965 at PAGEID
49142-50).
Under the Consent Decree that governs the Court’s review of SBU appeals, “MSD’s provision of cleanup services
under this program does not constitute an admission of any liability by MSD with regard to any claims that the
occupant may have against MSD for real or personal property damage caused by the building backup.” (Doc. 131,
Ex. 7 at 4). MSD will provide cleanup services when doubt exists about the cause of the backup after an initial
investigation based on the health risks posed by floods and water damage. (Doc. 640, Ex. B). Therefore, the fact
that MSD provided this cleaning service to the Property and paid for such service is not an admission of liability by
MSD.

5

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Mr. Pittinger testified that MSD does not ask its cleaning contractors determine the cause
of any backup. Rather, they “are instructed very, very specifically they are not to try and
categorize, form opinions or pass those [opinions] onto the customer.” (Doc. 1962 at PAGIED
48707).
Configuration of MSD Sanitary Sewer, Connections, and Building Laterals
The Gertz Property is serviced by an 8-inch Sanitary Sewer, which is maintained by
MSD. The first floor of the Property has three building laterals that connected to the Sanitary
Sewer. (Doc. 1967 at PAGEID 49363). The Property’s basement contains nine floor drains,
eight of which were incorrectly connected to the Norwood Storm Sewer. Only one of the nine
basement floor drains connected to MSD’s Sanitary Sewer. (Doc. 1961 at 48609-10; Doc. 1963
at PAGEID 48834). The Property’s first floor contained active trench and floor drains. (Doc.
1965 at PAGEID 49121-22).
The Property is located near the head-end of the Sanitary Sewer, which is 162 feet
upstream from the Property on Highland Avenue. (Doc. 1961 at PAGEID 48610).

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Only one building, a woodworking shop, connects to MSD’s Sanitary Sewer upstream of the
Property lateral connections. (Doc. 1961 at PAGEID 48542; Doc. 1961 at PAGEID 48610).
Cohen Recycling (“Cohen”) sits directly across Highland Avenue from the Gertz
Property and connects to MSD’s Sanitary Sewer by a single lateral. The Cohen lateral is
upstream of one of the Gertz first floor laterals. The Cohen property’s first floor bathrooms
properly connected to the Cohen lateral. However, the Cohen storm water catch basins
improperly connected to the Cohen lateral, which connected to MSD’s Sanitary Sewer. (Doc.
1967 at PAGEID 49365; Doc. 1961 at PAGEID 48544).
MSD attempted to trace the exact path between the catch basin pipes and the Cohen
lateral using an underground camera and above ground tracking instrument, but a large steel
scrap pile on the Cohen property prevented MSD from successfully tracing the path. (Doc. 1961
at 48559; Doc. 1962 at PAGEID 48700). Thus, there is no evidence of the exact configuration of
the connection between the Cohen catch basin pipes and the Cohen lateral. MSD diagramed the
approximate location of the connection between the catch basin pipes and the Cohen lateral using
blue dashed lines. The blue lines were intended to show connectivity of the catch basins to the
lateral and not the actual physical location. (Doc. 1962 at PAGEID 48700).

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(MSD Ex. 9). Mr. Pittinger testified that there must have been some bends and connections from
the catch basins to the lateral because “you have multiple inlets that tie into a single point of
connection, which inherently means that there are junctions and connections and bends.” (Doc.
1962 at PAGEID 48699-700).
MSD Field Investigations
Claimants contacted MSD on September 12, 2016 to report Property flooding from the
August 28, 2016 rain event. (Doc. 1810, Exs. A, B, C). Due to the overwhelming number of
calls for service that arose from this storm (over 2,000 reports), MSD prioritized responses to
those properties actively experiencing backups. At the time Mr. Gertz reported the backup, a
little less than two weeks after the storm, there was no active backup. MSD began its
investigation in December 2016.
Technical Field Investigation No. 1
On December 12 and 14, 2016, Anthony Pangallo and Greg Rogers, MSD Senior
Engineering Technicians, began MSD’s technical field investigations of the Property and the
surrounding area. On December 12, MSD walked the site and took photographs of the interior
and exterior of the building. Mr. Pangallo opened the covers of the Sanitary Sewer manholes to
investigate their condition. He reported that “[t]he Sanitary mainline was free and clear of any
debris and no sign of overload was evident in the manholes.” (MSD Ex. 3). Mr. Pangallo
testified there was no evidence of surcharge in the manholes. He testified that evidence of
surcharge would include “material, toilet paper, whatnot, either on steps or caught up somewhere
in the chamber of the manhole.” (Doc. 1961 at PAGEID 48581). Mr. Pangallo explained that
during a surcharge of a manhole, toilet paper and debris “gets caught up on the ladder steps . . .
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or any sharp edges within the manhole.” (Id.). He testified, “You can usually see a line if a
manhole has been surcharged, how high it came,” and he did not observe evidence of surcharge
at any of the relevant manholes. (Id.).
Mr. Pangallo reported the existence of six 8-inch pipes entering at the bench wall from
the South in Manholes 40514009, 40513002, 40513003 and 40513004. He stated that these
pipes all contained debris; the pipes’ origins were not evident; they were possibly drain lines for
telephone chambers located along the south side of Highland Avenue; and grade dictated that
these lines could not be from any other structure on the South side of Highland Avenue. (MSD
Ex. 3).
He also reported some trench drains in the rear of the Property appeared to be clogged.
Mr. Pangallo reported that the three-level Gertz building has a set of stairs fronting Highland
Avenue that sits below grade with a drain at the bottom of those stairs that “appeared to be
clogged and full of debris.” (MSD Ex. 3). Mr. Pangallo identified MSD Exhibit 19 as showing a
water line from high water on the front of the Gertz building, which Mr. Pangallo considered
evidence of overland flooding. (Doc. 1961 at PAGEID 4850, 48542). The first field
investigation report indicates that Claimants told MSD that “water cam[e] up through the floors
drains for the entire length of the building” at a depth of six to seven inches. (MSD Ex. 3 at 1,
2).
Technical Field Investigation No.1 concludes that following Mr. Pangallo’s above ground
visual inspections of the Gertz property and surrounding locations and his review of MSD sewer
records:
Chances of a mainline overload of this sanitary sewer are very slight due to the fact
that this appears to be a closed system with no visible storm sewer connections.
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The only infiltration would be very little from the manhole [ventilation holes in the]
lids.
Due to the orientation of the building floor in relationship to the street, a more likely
scenario is that overland flooding breeched the curb line of Highland Ave. and
entered the building through the doors located below street level.
(MSD Ex. 3).
Mr. Gertz testified that he and Mrs. Gertz showed Mr. Pangallo the locations where toilet
paper backed up into the building. (Doc. 1965 at PAGEID 49125). There is no mention
of toilet paper or fecal residue in any report prepared by Mr. Pangallo.
Technical Field Investigation No. 2
MSD returned to the Property on January 24 through January 26, 2017, to inspect and
video the Sanitary and Storm Sewer lines. (Doc. 1961 at PAGEID 48542; MSD Ex. 5). MSD
ran a camera in the Sanitary Sewer segments from the head-end of the Sanitary Sewer at
manhole (MH) 40514012 to MH 40513005 to review the condition of the pipe. (Doc. 1961 at
48542; Gertz Exs. 25-30, TV Inspection Reports of Sanitary Sewer Segments). From this
inspection, Mr. Pangallo concluded there were no structural issues in the Sanitary Sewer
mainline that may have caused a backup at the Property. (Id.).
Technical Field Investigation No. 3
On February 10, 2017, MSD conducted dye testing of culverts and inlets located on the
exterior of the Gertz Property and the Cohen property. (MSD Ex. 6, MSD Technical Field
Investigation No. 3). The culvert above the north side of the railroad tracks, which collected
drainage from the hill above the Gertz Property, has an outlet that discharges below the railroad
tracks and flows toward the trench drains in the rear parking area of the Property. (Doc. 1961 at
PAGEID 48543-44; MSD Ex. 18, MSD_GERTZ 00021, 00024-25). That culvert collected
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overland flow from over 24 acres on the hillside. (Doc. 1961 at PAGEID 48544). MSD
conducted a dye test behind the Gertz building on the outside catch basin drain in the new
concrete, which showed a connection to the downstream Storm Sewer. (Id.).
Two Cohen catch basins were designed to collect storm water from the Cohen property
and deposit that water in the Norwood Storm Sewer. Dye testing showed an improper
connection of the Cohen catch basin pipes to the Cohen lateral and ultimately to MSD’s Sanitary
Sewer. (Id.).
Technical Field Investigation No. 4
On February 14, 2017, the MSD crew investigated the floor drains in the lowest,
basement level of the Gertz Property. (Doc. 1961 at PAGEID 48545; MSD Ex. 7, MSD
Technical Field Investigation Report No. 4). MSD’s dye tests revealed that eight of the nine
floor drains in the Property’s basement tied into the Norwood Storm Sewer. One of the nine
floor drains connected to the Sanitary Sewer. (Doc. 1961 at PAGEID 48545). The crew also
dye tested a floor drain on the first floor, but the dye from this test did not show up in either the
Sanitary or Storm Sewer. (MSD Ex. 7 at Doc. 1866-7 at PAGEID 44645). Mr. Pangallo
concluded that the eight storm drains in the basement were significant because “if that storm
sewer surcharged, that’s an easy way [for water] to get into the building.” (Id.).
Technical Field Investigation No. 5
On February 24, 2017, MSD conducted its final technical field investigation. (Doc. 1961
at PAGEID 48546; MSD Ex. 8, MSD Technical Field Investigation Report No. 5). Dye from
testing two first floor interior floor drains showed in the Sanitary Sewer. With respect to the
pipes Mr. Pangallo identified as entering Manholes 40514009, 40513002, 40513003 and
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40513004 from the South, Mr. Pangallo testified that most of them were “capped” or
“bulkheaded,” meaning there was no sanitary or storm water flow from those lines entering the
MSD Sanitary Sewer. (Doc. 1961 at PAGEID 48546). Mr. Pangallo reported that “[t]he Flush
Vac truck began flushing the unknown 8" pipes from the south in the 4 manholes. The Flush
Vac truck hit hard in 3 of the four manholes at about 17 feet and about 2' in the western most
manhole.” (MSD Ex. 8). In response to a question by the Court, Mr. Pangallo clarified that
these laterals “were capped at the curb line of the street, so they weren’t in use. They had
physical caps on the end of them.” (Doc. 1961 at PAGEID 48553). MSD discovered two
building laterals upstream of the Gertz Property. One lateral was at the site of a demolished
house and had no flow into the Sanitary Sewer. The other lateral connected to a commercial
woodworking shop and actively allowed flow into the Sanitary Sewer. (Doc. 1961 at PAGEID
48546). MSD conducted an additional dye test in an outside roof drain stack which flowed into
the Norwood Storm Sewer. (MSD Ex. 8). Mr. Pangallo reported that “[t]he crew ran out of time
to launch the 8" pipes in the manholes but will return at a later date to complete this work.”
(MSD Ex. 8).
Executive Summary of Technical Field Investigations
Mr. Pangallo prepared an Executive Summary, which included all five Technical Field
Investigation Reports, photographs of the Gertz Property and surrounding area, a sewer line map,
and a topographical map. (Doc. 1961 at PAGEID 48546-47; MSD Ex. 9). The report states:
WWC crews performed TV inspections on 5 sanitary sewer mainlines and 8 City
of Norwood storm sewer lines, as well as all connections to these lines. The results
of these inspections showed that there are no storm sewer connections to the
sanitary sewer system with the exception of the catch basins on the Cohen Steel
property as previously noted. There are 6" pipes entering 4 of the sanitary manholes
from the south at the bench wall, all of these pipes were found to be bulk headed
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within the right of way. The TV review of these sanitary sewer segments revealed
no evidence of a mainline overload.
The building located at 2700 Highland Ave. is situated at the upper most end of the
sanitary sewer system in which it is served by. There are only 2 taps upstream of
the building and one of them is currently not in service and the other is a
woodworking business (TFI 5).
A review of the area downstream of 2700 Highland Ave. shows that there were no
other SBU’s reported along this sanitary sewer line from where it crosses the
Norwood Lateral to the headend MH just to the west of 2700 Highland Ave.
(MSD Ex. 9, Doc. 1866-9 at PAGEID 44655).
Mr. Pangallo observed no structural issues in the videos he reviewed and nothing in the
pipes that warranted repair. (Doc. 1961 at PAGEID 48578). Mr. Pangallo testified that if he
observed structural issues, i.e., a collapsed pipe, MSD would make repairs by either digging up
the street or by rehabilitating the pipe with a liner. (Doc. 1961 at PAGEID 48579). He indicated
that it was not his job at MSD to analyze whether potential obstructions such as encrustations or
rocks impacted the upstream or downstream flow within the Sanitary Sewer. (Doc. 1961 at
PAGEID 48581).
Mr. Pittinger, MSD’s former Wastewater Collection Superintendent, reviewed the
information gathered in the technical field investigations, conducted his own site visit, reviewed
the TV inspections of the Sanitary Sewer, and reviewed Dr. John Barton’s analysis of the peak
flow and peak capacity of the Norwood Storm Sewer to advise MSD in responding to the
Claimants’ SBU claim. Mr. Pittinger issued a report opining to a reasonable degree of
engineering certainty that:
Based upon the proximity of the building at 2700 Highland Avenue to the “headend”, or beginning, of the MSD sanitary sewer system, the complete lack of sanitary
flow in the MSD sanitary system due to the time of the storm event on a Sunday
evening and the occupancy status of all attached buildings, the limited number and
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limited probable volume of stormwater connections to the MSD sanitary sewer, and
the overwhelming physical and hydraulic capacity information regarding the
performance of the Norwood storm system, it is my professional opinion that the
flooding at 2700 Highland Avenue on 8-28-2016 was unrelated to the MSD sanitary
sewer system, and likely caused exclusively by a backup of the Norwood storm
sewer system through improperly connected basement floor drains in combination
with overland stormwater flow entering various building openings.
(MSD Ex. 13, Doc. 1866-13 at PAGEID 44702). Mr. Pittinger found it significant that eight of
the nine sewers in that basement area connected to the Storm Sewer and only one connected to
the Sanitary Sewer. (Doc. 1962 at PAGEID 48694). He also concluded that there were no
significant defects, such as a blockage or collapse, that would be severe enough to restrict the
flow and cause a backup in the Sanitary Sewer. (Id.). Mr. Pittinger testified he was “a hundred
percent confident that the storm sewer was surcharged completely.” (Doc. 1961 at PAGEID
48612). “The fact that eight of the nine drains in there were connected to the storm sewer, and
frankly we know beyond any reasonable doubt that the storm sewer was pressurized and flowing
under pressure, that means water was backing up out of those floor drains, I would say that with
no hesitation.” (Id. at PAGEID 48610).
Mr. Pittinger testified that Storm Sewer inlets take in a lot of debris, grit, chemicals, and
garbage, including paper products and dissolved paper or partially dissolved paper, from
overland flooding in a roadway. (Doc. 1962 at PAGEID 48713). When asked whether he
assumed the toilet paper found on the Gertz floor came through the Storm Sewer, Mr. Pittinger
testified, “I did not examine whether what toilet paper was in there, I had no report so I can’t
speak to that. I’m saying one possible explanation is if there was dissolved paper or partially
dissolved paper, it absolutely still could come from the storm sewer.” (Doc. 1962 at PAGEID
48712). Mr. Pittinger indicated that if he was told of the alleged presence of fecal material and
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toilet paper in the Gertz building, he would have questioned the cleaning contractor to learn the
evidentiary basis for the contractor’s conclusion. Mr. Pittinger testified that based on his past
experience, cleaning contractors can misidentify their observations of fecal matter because “[t]he
water that backs up from storm sewers in general can be very, very dirty.” (Id. at 48698).
He also testified about signs of surcharging in a manhole:
Particularly in older sewer systems where the manholes are made of brick. And I
think Mr. Pangallo talked about this. A lot of those they have old cast iron steps
that were actually placed in the manhole originally to provide access. They’re not
really used anymore. Most of them are rusted off or gone. But all of those sharp
edges on all that, those old protrusions, old cast iron that’s left on there, if there is
any sort of debris in there, it tends to stick on the stuff.
(Id.).
Dr. Kinman’s technical investigation
Dr. Riley N. Kinman, Ph.D., is a Civil and Environmental Consultant with RNK
Environmental, Inc. Mr. Gertz contacted Dr. Kinman in late May 2017. (Doc. 1967 at PAGEID
49331, 49335; MSD Ex. 37). According to Dr. Kinman, an important part of his investigation
included visiting the site and surrounding areas to consider the topography, types of soil, runoff
coefficients, and issues involved. He testified he spent over 200 hours on site and more than 40
hours reviewing the videos and technical reports from MSD. (Doc. 1971 at PAGEID 50072).
Dr. Kinman reported:
A field inspection of the Gertz building and ground indicated that the water did not
enter the building from the front loading dock, the front doorways, or the rear
driveway. There were no water marks as opposed to lawn-mowing marks to
indicate that water reached the outside of the building from either side.
(Doc. 1967 at PAGEID 49469).
Dr. Kinman surveyed elevations and displayed those in relation to the Cohen property,
16

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Highland Avenue, and the Gertz Property in his Original Report. (MSD Ex. 37; Doc. 1966 at
PAGEID 49226). Dr. Kinman was advised the flood water rose to about seven inches in the
Cohen building. (Doc. 1967 at PAGEID 49352). Dr. Kinman estimated the Cohen flood
elevation at 627.2 feet by adding the Cohen floor elevation of 626.62 feet to the seven inches of
flood water. (Doc. 1967 at PAGEID 49354). Dr. Kinman determined the street elevation at
Manhole 40513003 to be 624.83 feet (less than three feet below the Cohen flood elevation) and
the Gertz basement floor to be 622.33. Dr. Kinman depicted the relevant elevations as follows:
<.,,Z..1.

z.o

l 4 ..,

,,rr Jee .,,,.,._._~

-.1,o1e-.c

o,J"'°'<E"ett.-

~oJb..iw•

- L-~

~-Jr,pJ~,~~

··,:,,,..,J~y~ C.C--C,.lEit> •~ER..

~

\ &003

(MSD Ex. 37, Original Kinman Report, p. 37). Dr. Kinman’s first expert report depicted water
elevation at 4.87 feet across the road to the Gertz building. In his modified report, Dr. Kinman
revised his schematic of Typical Flooding Elevations, eliminating from his graphic the line
indicating the storm water elevation over the Gertz property:
October 2020

Typical Flooding Elevations

MANHOLE INVERT
8-INCH COMBINED SEWER

40513003
615.33Feel

17

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Dr. Kinman affirmed that “if the main sewer is blocked below where the Cohen lateral enters it,
and it’s blocked on the other side of the Gertz lateral, the water from the Cohen catch basin is
going to go down towards the Gertz building, because the Gertz building is lower.” (Doc. 1966
at PAGEID 49227). 6 Dr. Kinman opined:
A major storm stalled out over Norwood, Ohio on August 28th, 2016, which
included the watershed serviced by the 8-inch sanitary sewer in question. This
sewer was converted to a combined storm and sanitary sewer by the connection of
yard drains to the 8-inch sanitary sewer. The rainfall was 5 inches of rain in 40 to
60 minutes. This rain surcharged the sewers in the area and caused the 8-inch
sanitary sewer that services 2700 Highland Avenue (the Gertz Building) to backup
and contaminate a large quantity of merchandise at the Gertz building. . . .
(Gertz Ex. 9, Doc. 1867-2 at PAGEID 44776). Dr. Kinman stated that “[t]he connection of the
two storm catch basins in the Cohen parking lot to the 8-inch sanitary sewer, converts it into a
combined sewer.” 7 (Id. at 44777).
The Gertz building’s first floor level sits at an elevation of at least 630.33 feet, at least
eight feet higher than the basement floor. (Doc. 1967 at PAGEID 49362). The first floor
elevation was, therefore, at least three feet higher than the 4.87 feet of hydraulic head that Dr.
Kinman calculated. (Id. at PAGEID 49363). Accordingly, the three first floor laterals connected
at least three feet above the 4.87 feet of hydraulic head estimated by Dr. Kinman. (Id.). Aside
from the Cohen lateral, Dr. Kinman did not know of any other connections conveying storm

Dr. Kinman denied that his original graphic was “more accurate because it showed the storm water elevation that
he calculated and based his opinion on hitting the Gertz building as overland flow.” (Doc. 1967 at PAGEID 4936061). He explained that his first graphic was merely intended “to show the relative difference in elevation between
the storm water elevation and the Gertz floor that was flooded.” (Doc. 1967 at PAGEID 49361).
6

7
Under the Consent Decree, a “Combined Sewer System” is defined as “the portion of the Defendants’ Sewer
System designed to convey municipal sewage (domestic, commercial and industrial wastewaters) and stormwater
runoff through a single-pipe system to the Defendants’ Wastewater Treatment Plants or Combined Sewer Overflow
Outfalls.” (Doc. 131 at PAGEID 2635) (emphasis added). Contrary to Dr. Kinman’s opinion, a combined sewer
does not include a Sanitary Sewer that has improper Storm Sewer connections.

18

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water to the Sanitary Sewer.
Property History
The Gertz Property had no history of sewer backups or reports other than the report
following the August 2016 rain event. (Doc. 1963 at PAGEID 48825; Doc. 1965 at PAGEID
49115-16). There have been no reports of sewer backups at the Gertz Property after the report of
the August 2016 incident. (Doc. 1963 at PAGEID 48825).
Neighborhood Sewer Backup History
Mr. Gochoel’s neighboring property did not experience a sewer backup on August 28,
2016. (Doc. 1965 at PAGEID 49153). Properties that were lower in elevation than the Gertz
Property on the same sewer segment did not report Sanitary Sewer backups on or about August
28, 2016. (Doc. 1961 at PAGEID 48612; Doc. 1962 at PAGEID 48696).
Cohen Recycling did not report or experience a Sanitary Sewer backup on or about
August 28, 2016 and had no history of any reported SBUs. (Doc. 1965 at PAGEID 49133,
41935; Doc. 1961 at PAGEID 48611). Mr. Pittinger testified, “We do know that we had no
reports of backups from the Cohen facility through their sanitary line, which ultimately ties into
the same [catch basin] pipe, which then ties into the sanitary sewer, which was another data point
to recognize that even with the volume of water that was coming into those catch basins on the
Cohen property, they did not seem to have a problem with the sanitary backup.” (Doc. 1961 at
PAGEID 48611). While the Cohen property first floor flooded, the basement portion of the
building did not experience any flooding on August 28, 2016. (Doc. 1965 at PAGEID 49133).
The only manhole in the area that showed signs of surcharge was MH 42626009. This
manhole was located 2,500 feet downstream from the Gertz Property. (Doc. 1966 at PAGEID
19

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49235; Doc. 1967 at PAGEID 49496).
Overland Flooding
The location, terrain, and topography in the area made the Gertz Property susceptible to
overland flooding. (Doc. 1967 at PAGEID 49380-81). Dr. Kinman opined that “the site setting,
the topography and so forth, could lead to some overland flooding of the properties.” (Id. at
PAGEID 49381). Dr. Kinman explained that topography controls the movement of the water in
gravity flow in the sense that water is flowing from a point of higher elevation to a point of lower
elevation. Due to the different elevations, Dr. Kinman opined that most of the surface storm
water from the upstream hillside flowed into the Cohen yard and not down Highland Avenue.
(Doc. 1966 at PAGEID 49214, 49217). Dr. Kinman explained that given the 7% slope of Beech
Avenue—the road intersecting Highland Avenue to the North of the Gertz property—and the
14% slope of the driveway from the woodworking factory, the overland flooding from the
hillside above the Gertz Property traveled down Highland Avenue, was hit by the water coming
out of the woodworking shop, and diverted a major portion of the flow into the Cohen yard and
away from the Gertz property. (Doc. 1966 at PAGEID 49217-19; Gertz Exs. 41-43).
Dr. Barton disagreed with Dr. Kinman’s conclusion that the area’s topography diverted
the flow of water to the Cohen property such that the Gertz Property did not similarly experience
the same amount of flooding. Dr. Barton explained that according to Dr. Kinman’s survey, the
water level above the Sanitary Sewer manhole was two and one-half feet. Dr. Barton testified
that given the relative elevations in front of the Gertz building of 625 feet and 626 feet, any flood
level of 627.02 feet at the Cohen property and above the manhole would necessarily reach the
Gertz Property. (Id. at PAGEID 49472-73). According to Dr. Barton, water at that level would
20

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similarly reach two and one-half feet up the wall of the Gertz building, placing the water level
near window level and filling the stairwell. (Doc. 1967 at PAGEID 49470-71).

The RKN Report lndlcall!'U watel'
surfaee- e levation of 627.20 at
thil manhole (40S13003),

Fig ure 3: Cl oser view of hyd rauli c elevat ions shown across High land
Aven ue, stai rwel l labe led

(MSD Ex. 14, Fig. 3, street view of the Property and Highland Avenue, with Dr. Kinman’s
elevations noted).
Dr. Kinman disagreed. He testified there was no indication that water ever reached the
Gertz building by overland flooding. (Doc. 1967 at PAGEID 49450). According to Dr. Kinman,
any ponding of water over the Cohen catch basins would flow through the Cohen lateral, into the
Sanitary Sewer, and then into the Gertz building through the building lateral rather than overland
(Id. at PAGEID 49419-20), as depicted in this graphic by Dr. Kinman:

21

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5,....v ..v-

.;,:.f-u."--tt''l--

B~k y

<'l.:-t·

1€J.i?<..

5,.~f-Ma.,,Lol•

I'-/ 4-[ 10 I 7

(/'i • ..f--f,., -., ....... ,_)

1t:J.1~·1__:_
_,,___ -

(,1!f:..-> ~
<·

2.'-(.rl

/l.·o7'

,7.-I 0

I

1'

7-0

,i

I'

'

t, ,,,- •

'.d --L-='--''---"'"--:::------,:~

ri j ,v~ 3 o .t.1.s;.~.!:?S::::'"JJ,;-l'f~~~

Dr. Kinman testified that based on the elevation of 627.20 feet surrounding the ponded
water over the Cohen catch basins, any water that breached the perimeter of the pond would not
cross the street into the Gertz Property stairwells. Rather, based on the relative elevations of the
surrounding area, the water would travel East, parallel to the building and Highland Avenue to
the lower elevations and re-enter the street below the Cohen Building. (Doc. 1967 at PAGEID at
49418-22; Doc. 1971 at PAGEID 50052-53). He testified that the rainy day video supported his
conclusion that the overland “flow came down and entered Highland Avenue from behind the
[Gertz] building and around and did not enter the building as any overland flow.” (Doc. 1971 at
PAGEID 50072).
Mr. Gertz tested the water tightness of the exterior window and door wells in June 2017
and June 2020. (Doc. 1964 at PAGEID 48953). There was no video or documentation of the
2017 test. The video of the 2020 test showed minimal amounts of water entering the basement
from the door. (Gertz Ex. 35). Similar testing of the back window well showed no water
22

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leakage. (Id.). Mr. Gertz testified that dye testing of the drain at the bottom of window well in
the back of the basement showed a connection to the Storm Sewer. (Doc. 1964 at PAGEID
48947).
Mr. Pangallo testified that he observed a water flood level mark on the front wall of the
Gertz building when he did his technical field investigation. (MSD Ex. 19; Doc. 1961 at
PAGEID 48542). Mr. Gertz and Dr. Kinman both identified the line as discharge from lawn
mowing rather than a flood indicator. (Doc. 1964 at PAGEID 48937; Gertz Ex. 35 (lawn
mowing video); Doc. 1966 at PAGEID 49222). Mr. Gertz pointed out that the mark does not
appear above the concrete areas bordering the building. In other words, the mark exists only
where grass is adjacent to the building. (Doc. 1964 at PAGEID 48943).
Norwood, Ohio Municipal Storm Sewer
The Gertz Property is serviced by a separate 15-inch Norwood Storm Sewer that
discharges into a larger 30-inch Storm Sewer. (Doc. 1961 at PAGEID 48587; MSD Ex. 30). Dr.
Barton analyzed whether the August 2016 rain event would have overloaded the Norwood Storm
Sewer. (Doc. 1961 at PAGEID 48586). To do so, Dr. Barton determined (i) how much flow
came to the Storm Sewer (peak flow) and (ii) the Storm Sewer capacity (peak hydraulic
capacity). (Id.). Dr. Barton’s initial expert report sets forth his analysis and opinions regarding
the peak flow and peak hydraulic capacity of the Norwood Storm Sewer and the resulting
hydraulic grade line (how high the water would surface in or above the Storm Sewer pipe).
(Doc. 1961, at PAGEID 48588; MSD Ex. 12). Dr. Barton, who offered his opinions to a
reasonable degree of engineering certainty, opined that the 15-inch and 30-inch storm sewers
servicing the Property did not have adequate capacity to handle the August 28, 2016 storm. In
23

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other words, the Norwood Storm Sewer could not convey the flow coming off of the hillside
from the tributary area. (Doc. 1961 at PAGEID 48588). The hydraulic grade line (HGL) in front
of the Gertz Property would have been higher than the surface of Highland Avenue, and the
basement laterals which were connected to the Storm Sewer would have backed up and flooded
the basement. (Doc. 1961 at PAGEID 48589).
Dr. Barton employed two scientific methods in his analysis. First, Dr. Barton’s rational
method analysis determined a peak flow of 12 cubic feet per second (CFS) by analyzing rainfall
intensity from radar data, topography, slope, and acreage of the surrounding area to calculate the
tributary area flowing to the Storm Sewer inlets serving the Gertz Property. (Doc. 1961 at
PAGEID 48589-90; MSD Ex. 12). Dr. Barton initially analyzed the capacity of a 12-inch pipe
serving the property that sits at a 12% slope, which was 3.8 cubic feet per second. (Id.). Dr.
Barton subsequently learned that the pipe was actually 15 inches, adjusted his calculations
accordingly, and came to the same conclusion: that flow coming from the tributary area of 20
acres (12 CFS) would have significantly exceeded the capacity of the Storm Sewer 15-inch pipe
(4 CFS) servicing the inlets in front of the Property. (Doc. 1961 at PAGEID 48590, 48592). Dr.
Barton also analyzed the 30-inch portion of the Norwood Storm Sewer based on an expanded
tributary area, and concluded that the 30-inch pipe did not have capacity to handle the peak flow.
(Doc. 1961 at PAGEID 48603).
Second, Dr. Barton’s modeling team analyzed the capacity of the Storm Sewer to convey
the flow by using the EPA-SWMM model. (Doc. 1961 at PAGEID 48590). Dr. Barton
explained that the EPA-SWMM model is the industry standard for hydraulic modeling of sewer
and storm pipes as it analyzes the entire rainfall event using rain gauge and radar data. (Doc.
24

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1961 at PAGEID 48590-91, 48596). According to Dr. Barton, this second method of analysis
confirmed that the flow coming from the hillside tributary area (19.6 CFS) far exceeded the
Storm Sewer pipe capacity (6.6 CFS). (Doc. 1961 at PAGEID 48591-92; MSD Ex. 12 at 1).
Dr. Barton concluded that the Storm Sewer lacked adequate capacity for the rainfall during the
event. When a Storm Sewer does not have adequate capacity to convey water, the water will
travel overland or surcharge back into a connection, like a floor drain. (Id. at PAGEID 48593).
Dr. Barton concluded that the Norwood Storm Sewer was completely full and flowing under
pressure, creating surface flooding on the road, resulting in water and muck pouring out of the
eight basement floor drains in the Gertz property. (Doc. 1967 at PAGEID 49474-77).
Dr. Kinman also testified that the Norwood Storm Sewer filled and surcharged during the
rain event. (Doc. 1966 at PAGEID 49237; Doc. 1967 at PAGEID 49394, Gertz Ex. 9, Modified
Report of Dr. Kinman, at PAGEID 44813, “Storm water fills all storm sewers in Highland
Avenue to street level by running fast (Runoff Coefficient 0.6 - 1.0) down Highland Ave.”). Dr.
Kinman estimated that “five inches of rain dropped an estimated 17,526,843 gallons on the
watershed surfaces in the 40-to-60 minute period per Norwood Officials” (Gertz Ex. 9; Doc.
1867-2 at PAGEID 44776), and a lot of that water went into the Storm Sewer. (Doc. 1967 at
PAGEID 49351).
The rainy day video was consistent with the Storm Sewer becoming full and flooding.
The video shows surface water covering and flowing down Highland Avenue. (Gertz Ex. 40).
Condition of Sanitary Sewer System in the Neighborhood
Inspection of the Relevant Manholes
In early December 2016, Mr. Pangallo pulled the relevant Sanitary Sewer manhole lids
25

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and observed that the mainline was free and clear of any debris, and there were no signs of
overload or surcharge in the manholes. He testified that surcharge evidence includes a water line
within the chamber or toilet paper or other debris hanging from the ladder steps or on the walls
of the manhole chamber. (MSD Ex. 3; Doc. 1961 at PAGEID 48581).
Dr. Kinman did not observe or record any signs of surcharge in the manholes adjacent to
or immediately downstream from the Gertz Property’s laterals. (Doc. 1967 at PAGEID 4939899). 8 Dr. Kinman photographed MH 40513003 (Gertz Ex. Figures 23 and 24), the manhole

closest to the Gertz basement lateral. He testified that if he saw signs of surcharging it would
have been significant, and he would have documented it. (Doc. 1967 at PAGEID 49399). When
asked whether the lack of surcharge evidence in MH 40513002 and MH 40513003 was
significant, Dr. Kinman responded, “The surcharge there could have been caused by
groundwater, and in that sense that groundwater would be cleaner than the sanitary and also the
surface storm water. So it would drain down and not really impact the manhole with any grease
or anything like that.” (Doc. 1967 at PAGEID 49407).
Dr. Barton testified there would have been clear signs of surcharge, such as debris in the
manhole or a surcharge ring, in the Sanitary Sewer manholes adjacent to the Gertz Property had

Claimants allege that “the TFI Report No. 1 prepared by Mr. Pangallo indicates that the four 6-8 inch lines from
the South unknown sources did contain debris in all four sanitary MH’s, which is contrary to Mr. Pittinger finding
that there was no evidence of overload or debris in the sanitary MH’s.” (Doc. 2004 at PAGEID 51375). This is a
misreading of Mr. Pangallo’s report, which states that the pipes, not the manhole walls, contained debris in them:

8

The Sanitary mainline was free and clear of any debris and no sign of overload was evident in the
manholes. Manholes 40514009, 40513002, 40513003 and 40513004 all have 6-8” pipes entering
at the bench wall from the south, these pipes all had debris and the origins of the pipes were not
evident, they are possibly drain lines for telephone chambers located along the south side of
Highland Ave. Grade dictates that these lines could not be from any other structure on the south
side of Highland Ave.
(Doc. 1866-3 at PAGEID 44634) (emphasis added).

26

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the Sanitary Sewer caused a backup into the Property. He also addressed the concept that there
could be surcharge in the manhole without resulting debris:
[O]n the one side we have the Cohen property, and it’s got a foot and-a-half of mud,
dirt, debris that had to be cleared away with Bobcats. On the other side, we have
the Gertz basement that -- if you look at the photograph, the floor is covered with
mud and gravel and sand and a ring around all the furniture. So everything is
covered with a layer of debris up to the depth of the water, everything except our
manhole; no debris ring up at the manhole where it has to be, and it has to be up
within a foot or two of the top.
***
So the concept that a sewer could surcharge and the water would be so clean, yet
one side we have, you know, truckloads of muck [at the Cohen Basins], and on the
other side we have a basement full of muck and dirt [the Property’s basement]. And
coming down the street, the video we saw for 45 seconds or whatever, it was dirty,
brown, runoff water. Yet the one place it has to be for our sewer to have been the
cause is in our sewer within the top three feet of the manhole, and it’s not there.
(Doc. 1967 at PAGEID 49467-68).
Dr. Kinman noted and photographed signs of surcharge in MH 42616009, which was
located 2,500 feet downstream from the Gertz Property. (Gertz Ex. 9, figures 25-27). He opined
that a surcharge in MH 42616009 contributed to the Gertz Property backup:
A second problem location for this 8" diameter sewer occurs downstream. The 8"
is enlarged to 12" sewer at one location. A second 12" diameter sewer is connected
to it from Duramed Drive. At the connecting point, the two 12" diameter sewers
are directed to a 10" diameter sewer for passage under 1-71. This is an attempt to
direct 24" of flow through a 10" diameter pipe. It cannot not happen if both of the
12" pipes are flowing full. The sewer will back up and this sewer backed up at
2700 Highland Ave. This back up would be expected under these hydraulic
conditions.
(Gertz Ex. 9, Figure 25; Doc. 1867-2 at PAGEID 44780). Figure 25 is a photograph MH
42616009, which is located on the 10-inch section of the Sanitary Sewer at the convergence of
the two 12-inch diameter sewers. (Doc. 1966 at PAGEID 49235). Dr. Kinman noted “the grease
and crud on the manhole and the manhole steps from a previous backup.” (Id.).
27

Case: 1:02-cv-00107-MRB-KLL Doc #: 2044 Filed: 12/05/22 Page: 28 of 82 PAGEID #: 53272

Figure

: Manhole on the 10" section or the 8" sewer where two 12"

diameter sewers converge to feed tne 10· u'lder 1-n. Note the grease and crua
on the manhole and the manhole steps from a pr,,.;ous bade-up. July 29"', 2017.

RNK 0G Kevin.

Dr. Kinman acknowledged that the surcharged Sanitary Sewer depicted in Figure 25 was
2,500 feet downstream from the Gertz lateral. He testified that he examined seven other
manholes in the vicinity of MH 40513003 across from the Gertz lateral, but MH 42616009
(Figures 25-27) was the only one in which he observed grease and crud from a previous backup.
(Doc. 1967 at PAGEID 49398). When asked whether each intervening manhole leading
upstream to the Gertz lateral would overflow or provide a point of release for the surcharging
manhole, Dr. Kinman responded “not necessarily” because of “a time factor here of 2500 feet”
and other variables within the system. (Doc. 1966 at PAGEID 49235-36).
Dr. Barton agreed that MH 42616009 overflowed, but he testified it had no impact on the
flow of sewer water along Highland Avenue and the Gertz Property. Dr. Barton opined:
The rim of the surcharging manhole at the bottom of a steep hill overflows at an
elevation 43.98 feet lower than the invert of the sewer near the property. If all the
pipes were relatively flat (which they are not), the tailwater could affect upstream
depths of flow. However, in this case where pipes are very steep, therefore
downstream tailwater does not affect upstream levels. Hydraulically we would say
the steep pipes have supercritical flow. A Froude number greater than 1 indicates
supercritical flow. In this case the Froude number varies in the range of 2-3 in the
steeper sections of the pipe. Again simply put, tailwater cannot propagate upstream
28

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in supercritical flow; it cannot propagate from the overflowing manhole back up
the steep pipe.
(Doc. 1866-14 at PAGEID 44712). Dr. Barton explained that the Sanitary Sewer mainline
slopes very steeply from the Gertz Property down to MH 42616009:

S\Jl'(;h.araed Maf\hol•
42616009 wMre two
li.lnch pi es contribute
to onf!a

ipe

Figure 8: Hydraulic profile showing steep pipes on the hillsides upstream of
manhole 42916009.

(MSD Ex. 14, Fig. 8; Doc. 1967 at PAGEID 49496). Dr. Barton noted that MH 42616009’s rim
elevation is 43.98 feet below the Gertz Property lateral connection and its invert is 55 feet below
the Gertz Property connection. (See also Gertz Ex. 13). According to Dr. Barton, there would
need to be at least 30 or 40 feet of surcharge above MH 42616009’s rim to back up the Sanitary
Sewer line enough to reach the Gertz Property. Dr. Barton testified that given the distance and
relative elevations between the Gertz Property and MH 42616009 “[i]t is impossible for a
surcharge at Manhole [42616]009 to have hydraulic impact on the sewer runs along Highland
Avenue. It’s too far down the hill.” (Doc. 1967 at PAGEID 49498). According to Dr. Barton,
the 14 manholes between MH 42616009 and the Gertz Property would release any flow of
sewage before it could reach the Gertz lateral. (Id.). Dr. Barton concluded that “sewer surcharge
reported down there [at MH 42616009] is irrelevant to what happened at the Gertz property.”
(Id. at PAGEID 49499).

29

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The Condition of the 8-inch Sanitary Sewer Pipe
As discussed above in connection with Technical Field Investigation 2, on January 24
through January 26, 2017, MSD performed a TV camera video inspection of the Sanitary Sewer
line from the head-end of the Sanitary Sewer at MH 40514012 to MH 40513005 to review the
condition of the pipe. (Doc. 1961 at 48542; Gertz Exs. 25-30, TV Inspection Reports of Sanitary
Sewer segments). MSD’s TV Inspection Reports set forth the video’s relevant findings, which
are described as incidents or observations. (Gertz Exs. 25-30). The TV Inspection Reports
reflect the sewer segment videoed; the direction (upstream/downstream); the length of the
relevant segments; the weather conditions; conditions observed at a particular footage; and
comments. The TV Inspection Report of Sanitary Sewer segment MH 40513003 to MH
40513002 indicates that MSD abandoned the survey at the 11:00 foot mark due to heavy deposits
at this point. (Gertz Ex. 27: “Cleaning main line sewer segment 40513002-40513003 so that a
main line TV inspection can be made.” “Flushed main line. Small amount of debris brought
back. Deposit cut main line using milling saw. Deposits attached at 240 feet upstream from
downstream manhole 40513003. Needs to be deposit cut.”). Following the deposit cut, MSD
then reversed its inspection starting at MH 40513002, the upstream manhole, and proceeded
downstream. (Gertz Ex. 28).
MSD’s videos showed the presence of rocks, grease, “drippers,” broken pipe,
encrustations, ponding water, and deposits at various locations within the Sanitary Sewer
segment. (Gertz Ex. 28, 29, 38). The video from MH 4051004 to MH 4051003 shows rocks and
debris located upstream at 244.10 feet from MH 4051004. MH 405004 is downstream three to
five feet below the Gertz basement lateral tap. MSD’s commentary after completing the
30

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inspection of this section of the Sanitary Sewer indicates there is heavy debris in this section and
that it needs cleaning as soon as possible. (Doc. 1964 at PAGEID 49065-66; Gertz Ex. 29). The
TV Inspection Reports and accompanying video descriptions for the segments show that MSD
subsequently replaced several sections of Sanitary Sewer line due to conditions found in the
videos. (Gertz Exs. 25-30).
Mr. Pangallo, who performed MSD’s technical field investigations of the Property,
testified he did not observe any structural issues with the pipe that might have caused a backup at
the Property and nothing that warranted repair. (Doc. 1961 at 48542).
Mr. Pittinger also reviewed the segments of the six videos in Court. Mr. Pittinger
testified, “So what we saw in the TV investigations I think probably pretty accurately represents
the state of those sanitary sewers as they were in August of that year.” (Doc. 1962 at PAGEID
48710). He identified within the pipes encrustations, water sags (standing water in a flat pipe),
obstacles, capped taps, fine deposits, broken pipe, cracks, compacted deposits, possible toilet
paper at 238.10 feet, rocks, manholes and manhole lids. (Doc. 1962 at PAGEID 48684-91). He
testified that encrustations can form from mineral deposits, grease, and other things. (Id. at
PAGEID 48679). The rocks encountered during the TV inspection were easily moved by the
camera, and did not appear to restrict or affect the flow in the pipe. (Id. at PAGEID 48691). At
that time, the maximum obstruction identified in the sanitary sewer was approximately 12%.
(MSD Ex. 14, Figs. 9 and 10; Doc. 1967 at PAGEID 49502-03, describing the method and
calculation of the 12 percent obstruction). This obstruction was located in the Sanitary Sewer
between the Cohen catch basin taps and upstream of the Gertz Property basement lateral. The
obstruction would have blocked only upstream flow and reduced the flow from the Cohen lateral
31

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and through the Sanitary Sewer to the Gertz Property basement lateral.
Mr. Pittinger reviewed the videos to assess the current capacity of the Sanitary Sewer and
to determine if there were “any significant blockages or breakages, anything that would really
block it up.” (Doc. 1962 at PAGEID 48693). According to Mr. Pittinger, the field investigation
reports revealed no significant defects, such as a blockage or collapse, that would severely
restrict the flow and cause a backup in the main Sanitary Sewer serving the Gertz Property.
(Doc. 1962 at PAGEID 48694). Mr. Pittinger testified that watching the video of the Sanitary
Sewer line again confirmed his conclusion that there was no structural damage or other
obstructions that would inhibit flow in the pipe. He stated that the debris and rocks within the
pipe were transient and easily moved by the video camera, indicating they did not affect the flow
in the pipe. (Id. at PAGEID 48707). 9 When asked about the “large rock” on a segment of the
9
The Gertz brief represents that “Mr. Pittinger identified Gertz Exhibit G-37 as being a screenshot of an incident at
approximately 231 feet heading US from MH 4 to MH 3 noting a 40% blockage in the pipe.” (Doc. 2004 at
PAGEID 51399) (emphasis added). This is not an accurate characterization of Mr. Pittinger’s testimony:

Q. And what is G-37?
A. It is a screenshot showing the incident 10 called out at approximately 231 feet heading
upstream.
Q. And it shows a percentage of what?
A. Forty
Q. Forty, okay, we talked about that.
(Doc. 1962 at PAGEID 48691). Mr. Pittinger actually testified that he disagreed with the 40 percent
characterization of the incident description depicted in Gertz Ex. 37:

(Doc. 1962 at PAGEID 48690):

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TV video that was located “immediately downstream” of the Gertz lateral, Mr. Pittinger testified
it would not cause him concern because in the video he observed “how easily it was moved by
the camera. . . . The cameras have very limited power, so it [the rock] was not fixed. Any
significant flow in that pipe would move that downstream with no effect on the flow.” (Doc.
1962 at PAGEID 48703-04).
Dr. Kinman also reviewed the TV videos of the relevant Sanitary Sewer lines. He
opined, to a reasonable degree of scientific certainty, that the impaired condition of the public
Sanitary Sewer pipe to which the Gertz lateral connected, combined with the heavy rain and the
additional storm water from the Cohen catch basins, floor drains, and urinal, overloaded the
Sanitary Sewer and changed the gravity flow within the Sanitary Sewer to pressure flow, causing
the Sanitary Sewer to back up into the Gertz building. 10
Dr. Kinman testified that the condition of the Sanitary Sewer pipe itself contributed to the
backup of sewage into the Gertz building. According to Dr. Kinman, the Sanitary Sewer pipe

Mr. Pangallo was asked about this same reference to “Percentage:” in Gert Ex. 37. Mr. Pangallo did not know what
the term “Percentage” meant. (Doc. 1961 at PAGEID 48575). He testified, “I’m assuming it’s blockage like he
[counsel for Claimants] said.” (Id.). Mr. Pangallo was directed by the Court to not make assumptions but to testify
based on his first-hand knowledge. Then, in response to Claimant’s counsel’s question whether in his experience
does the photo show what appears to be a 40 percent blockage, Mr. Pangallo testified “no.” (Id. at PAGEID 48576).
There is no evidence that either Mr. Pittinger or Mr. Pangallo interpreted the term “Percentage” to reference the
amount of “blockage” in the pipe. Mr. Pittinger testified that the notation of “Percentage” in the video camera
system is meant to approximate the percentage of the overall cross-section of the pipe area that the incident covers,
not “blockage” of a pipe. (Doc. 1962 at PAGEID 48686).
10

Dr. Kinman’s expert reports set forth no opinions on the maintenance, maintenance schedule, required
maintenance, or any negligence for complying with maintenance schedules or maintenance requirements relating to
“negligent maintenance” as that term is used in the Consent Decree. Therefore, the Court sustained MSD’s
objection on this point and prohibited Dr. Kinman from offering an opinion or testifying on MSD’s general duty to
properly maintain the Sanitary Sewer system. The Court distinguished between Dr. Kinman’s opinion on the
conditions of the sewer pipe and the effect of those conditions on flow through the pipe and hydraulic jump. (Doc.
1971 at PAGEID 50087-90).

33

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had numerous impediments to the flow of water and sewage through the pipe, including
encrustations, heavy deposits, rocks, broken pipe, sags, holes, fractures, obstacles and slope
changes. (Doc. 1966 at PAGEID 49221-22, 49225, 49237, 49239, 49258). For example, Dr.
Kinman stated that the MSD video, as captured in these still shots, showed settled deposits and
an obstruction in the Sanitary Sewer line which posed an impediment to flow:

(Gertz Ex. 37; Gertz Ex. 10, Addenda at Doc. 1867-3 at PAGEID 44853). Dr. Kinman testified
that a large brick-like object in the Sanitary Sewer pipe approximately 1.5 feet below the
junction of the Gertz lateral also presented an impediment to flow:

(Gertz Ex. 38).
Dr. Kinman further opined that among the defects in the Sanitary Sewer pipe downstream
from the Cohen lateral and upstream from the Gertz lateral was an obstruction, which
contributed to the poor condition of the pipe and the backup into the Gertz property. (Gertz Ex.
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9; Doc. 1867-2 at PAGEID 44779). Dr. Kinman stated:
When MSD attempted to send a camera upstream from manhole 003 to 002 in the
8-inch sewer segment, this sewer was found by MSD to be so clogged that the
camera inspection had to be abandoned and reattempted by going downstream from
manhole 002.
(Id.).
According to Dr. Kinman, the Sanitary Sewer was replete with these obstacles, as
demonstrated in the TV video reports. (Gertz Exs. 25-30). Dr. Kinman’s modified expert report
contains seven pages summarizing the pipe conditions of the relevant sewer segments on
Highland Avenue. (Gertz Ex. 9, Doc. 1867-2 at PAGEID 44816-44822).
Capacity of the 8-inch Sanitary Sewer Pipe
Dr. Kinman opined that the obstacles in the Sanitary Sewer caused changes in velocity
and turbulence within the sewer pipe which, in combination with the additional flow from the
Cohen catch basins and groundwater entering the pipe, changed the pipe’s gravity flow to
pressure flow, causing the Sanitary Sewer to backup into the Gertz building laterals. (Doc. 1966
at PAGEID 49259-60). Dr. Kinman explained that the interaction of an increased volume of
storm water and obstacles within the Sanitary Sewer pipe produces turbulence within the pipe,
resulting in a rise of the water level within the pipe. If the pipe is completely blocked, such that
water cannot flow by gravity, the gravity flow changes to pressure flow causing a “hydraulic
jump” within the Sanitary Sewer. Dr. Kinman testified that a hydraulic jump can be triggered by
many impediments to flow within a sewer pipe, including obstacles, ponded water, a sag in the
pipe, a change of slope, or a change of velocity. According to Dr. Kinman, this pressurized jump
forced the combination of sewage and storm water up seven feet of the Gertz sanitary basement
lateral—which was the point of least resistance—causing the basement to flood. Dr. Kinman
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testified, “Now, in this case, we had a horribly defective downstream sewer here with many
quote/unquote possibilities for hydraulic jump, and by that I mean there were many impediments
to flow that could trigger the hydraulic jump. Now, which one triggered it, I don’t know, but the
point is that there’s a phenomenon.” (Doc. 1966 at PAGEID 49228). He stated that “when this
happens downstream of the point of interest, in this case the Gertz lateral, you have what we call
choking. You now block the normal flow of the pipe. And so, that pipe now switches from
gravity flow to pressure flow.” (Id.). He further testified, “And then the point of least resistance
is the Gertz floor because there’s a lateral leading up there open to atmospheric pressure,
whereas the pipe pressure now is exceeding. In other words, it was gravity flow where you have
literally open air and the atmosphere is pushing on it. You now have pressure flow, and it’s
going to go right up into the building.” (Id.).
Dr. Kinman opined that there were three sources of water entering the Sanitary Sewer
pipe that caused the backup into the Gertz Property: sanitary flow, groundwater, and storm water
entering the sanitary pipe from the Cohen catch basins. (Doc. 1967 at PAGEID 49340). Dr.
Kinman “determined that the three major sources into the Cohen yards here that created our
problem across in the Gertz building was the water coming down the slopes here behind the
woodworking building, that’s one, the water coming down Highland Avenue, and then the
ground water that was impacted through the railroad ties here and behind the building here.”
(Doc. 1966 at PAGEID 49214).
Additional sanitary flow from upstream
There was no added upstream sanitary flow to the Sanitary Sewer on Sunday, August 28,
2016. No one occupied the woodworking shop that day, which was the one building upstream
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from the Gertz Property with an active Sanitary Sewer tap. (Doc. 1961 at PAGEID 48610-11;
Doc. 1967 at PAGEID 49371).
Groundwater entering the Sanitary Sewer
Dr. Kinman testified that flow through the 8-inch Sanitary Sewer mainline was affected
by groundwater infiltration and a large number of encrustations in the pipe. (Doc. 1966 at
PAGEID 49260; Doc. 1970 at PAGEID 49970, 49972). According to Dr. Kinman,
encrustations reduce the roundness of the pipe and provide solid evidence of ground water
infiltration, opining “the encrustations not only reduce the area of the pipe, but they are triggers
for hydraulic jump.” (Doc. 1970 at PAGEID 49972, 49980-82).
Dr. Kinman testified that groundwater north of the Gertz Property penetrated through 35
acres of railroad ballast, consisting of 10 to 12 feet of large porous rock, allowing “rapid
drainage from the surface water into the groundwater which fully immersed the sanitary sewer
pipe.” (Doc. 1967 at PAGEID 49430). According to Dr. Kinman, groundwater entered the 8inch Sanitary Sewer via holes in the pipe and leaking joints. (Doc. 1970 at PAGEID 49970,
49972). He testified, “Water will get to the pipe and flow right down along that pipe and into
any holes inside the pipe, then, and will impact your ground water flow, the infiltration inflow
into the pipe. And the topo here is such that I believe it was a major impact in this flow here.
And both the surface water and the ground water impacted what we see happening here.” (Id. at
PAGEID 49972). Dr. Kinman reiterated that the groundwater infiltrating the water table exerted
“pressure on the holes in the pipe to put more ground water in [the pipe],” and “this is a
significant loading factor with adding five inches of water on that ground water table. . . .” (Doc.
1970 PAGEID 49973). He testified that “groundwater had a major impact on this particular
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backup.” (Doc. 1967 at PAGEID 49342).
Dr. Kinman also observed “groundwater flow” in the Sanitary Sewer line on a Saturday
in July of 2017, during dry weather conditions, when no one was working in the area to
contribute to the sanitary flow. According to Dr. Kinman, groundwater flow filled one-fourth to
one-third of the sewer capacity. (Doc.1966 at PAGEID 49222, 49260). He testified, “There is
evidence of groundwater flow on that main line both in the encrustations and the holes in the
pipe.” (Doc. 1967 at PAGEID 49430). Dr. Kinman also found evidence of dry weather water
flow in the Sanitary Sewer line on Wednesday, October 4, 2017, during the work week. 11 (Doc.
1967 at PAGEID 49441). Dr. Kinman estimated that groundwater filled the Sanitary Sewer pipe
one-quarter to one-third full by looking into the manhole “from the top of the manhole.” (Doc.
1967 at PAGEID 49438; Gertz Ex. 31):

Dr. Kinman did not measure the volume of the dry weather flow within the Sanitary Sewer pipe.
(Doc. 1967 at PAGEID 49383).
The significance of this evidence from Dr. Kinman is not apparent. As it was during the workweek, one would
expect some flow in the Sanitary Sewer pipe from the use of fixtures, including sinks and toilets, from the business
upstream of the Gertz Property.

11

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When asked whether the observations listed in MSD’s TV Inspection Report of the
Sanitary Sewer segment from MH 40513003 to MH 40513004 (Gertz Ex. 29) are sources of
possible water infiltration into the sewer system, Mr. Pittinger testified that “anything
underground is subject to infiltration.” (Doc. 1962 at PAGEID 48692). However, “[T]here’s a
significant delay from the time that the rain falls from the time that it really influences
groundwater, significant delay. So in this particular case to suggest that the rainfall that was in
the area was pouring into the -- the sanitary sewer through the ground, in my opinion that would
be an inappropriate conclusion.” (Doc. 1962 at PAGEID 48702).
Storm water from the Cohen lateral
The Cohen lateral, across from the Gertz Property, is located downstream from the firstfloor Gertz laterals and upstream from the Gertz basement-floor laterals. (Doc. 1961 at PAGEID
48545). At the time of the August 28, 2016 storm, the Cohen catch basins were improperly
connected to the Cohen lateral and ultimately to the MSD Sanitary Sewer. MSD first learned of
the unauthorized Cohen catch basins through dye testing during the February 2017 technical
field investigation. (Doc. 1961 at PAGEID 48544).
Cohen manager Mr. Beebe observed three-inch rocks from the railroad tracks up the
street being carried by the overland flooding down Highland Avenue. The water breached the
maintenance roll-up door on the first floor of the Cohen property facing Highland Avenue and
accumulated outside the building to a depth of one to two feet. There is a catch basin across
from this door and another one 30 feet away. The day after the August 28, 2016 storm, Mr.
Beebe observed a foot and a half of debris, rock, mud, and dirt at the catch basins in the parking
lot. He used Bobcats to remove the dirt and debris from the catch basins and Cohen’s main gate,
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which also had a lot of rock, dirt, mud and “sandy type stuff” in front of it. He noticed between
an inch to six-inches of water on the floor of the Cohen building. (Doc. 1965 at PAGEID 4913132, 49139). He testified that the catch basins were draining slowly. (Id. at PAGEID 49133).
Mr. Pittinger testified that the Cohen catch basins were not well-maintained and would
clog easily, meaning they would not be able to convey a high volume of storm water to the
Cohen lateral. (Doc. 1961 at PAGEID 48612). According to Mr. Pittinger, the 8-inch Cohen
lateral likely was not flowing 100% full even if water ponded over the catch basins due to
blockages at the inlet site (catch basins) and the physical arrangement of the pipes. (Id. at
PAGEID 48701). He opined that there was not enough flow through the Cohen lateral to back
up the Sanitary Sewer. (Id.). Mr. Beebe confirmed that the catch basins would regularly back up
with “a good heavy rain.” (Doc. 1965 at PAGEID 49132). Based on the history of the area, Mr.
Pittinger would not expect the storm water flow from the Cohen catch basins to the Sanitary
Sewer to cause a backup or surcharge of the Sanitary Sewer. He testified that the ponded water
in the Cohen driveway signified that the water was not free flowing from the Cohen catch basins
into the Sanitary Sewer. Debris constrained the inlets thereby limiting the amount of water that
flowed through the Cohen pipes to the Sanitary Sewer. (Doc. 1962 at PAGEID 48707-08). The
design of the inlets further restricted the water volume that could flow into the Sanitary Sewer at
once, similar to the drain at the bottom of a sink. (Id. at PAGEID 48708).
The exact configuration of the catch basin connections to the Cohen lateral is unknown.
MSD attempted to map the connection by running a camera through the pipe but lost the ability
to trace the camera above ground due to a large steel scrap pile on the Cohen property. (Doc.
1961 at PAGEID 48559-60; Doc. 1962 at PAGEID 48708). However, according to Mr.
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Pittinger, the pipes connecting to the Cohen lateral necessarily contained bends and pipe
connections because of the multiple inlets tying into a single point of connection. (Doc. 1962 at
PAGEID 48699). Prior to the August 2016 storm, there were four-inch lines running from the
Cohen basins to the Cohen lateral. (Doc. 1965 at PAGEID 49134; Doc. 1967 at PAGEID
49410). After August 2016, Cohen changed those pipes to six-inch pipes to handle more water.
(Doc. 1965 at PAGEID 49134).
Manning equation and hydraulic jump
Dr. Kinman stated that three triggers contributed to the hydraulic jump within the
Sanitary Sewer: (1) the brick or large rock located two feet downstream from the Gertz lateral;
(2) a 12% blockage eight feet upstream from the Gertz lateral; and (3) a change in the slope from
3.5% to 1.2%. (Doc. 1971 at PAGEID 50080). Dr. Kinman testified the following factors were
significant: the pressure head was caused by the hydraulic jump; the elevation head was caused
by the difference in elevation; and the velocity head was caused by the change in slopes of the
Sanitary Sewer line from 3.5% to 1.2%. (Doc. 1966 at PAGEID 49226). Dr. Kinman explained
that “the velocity coming into this manhole three right ahead of the Gertz line is coming in on a
slope of 3.5 percent. The slope leaving the manhole is 1.21 percent. Now, that water is coming
down faster than it can get away. So, what does it do? It follows the path of least resistance. It
climbs up into the Gertz building.” (Doc. 1966 at PAGEID 49224). According to Dr. Kinman,
these triggers combined with increased water flow resulting in a greater likelihood of hydraulic
jump and backup into the Gertz building. (Doc. 1971 at PAGEID 50080-81).
Dr. Kinman used the Manning equation to calculate the upstream and downstream flows
within the Sanitary Sewer. Dr. Kinman calculated the pipe flowing full based on slope and
41

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gravity flow. (Id. at PAGEID 49365-67). He depicted the summary of the flows in the various
segments of pipe to show the amount of backup into the Gertz building as follows:
August 20. 2016 Flow Calculations at 2700 Highland Ave
Manning Flow Equation with n = 0.01S or n - 0.03S
8-inch

Slope 3.51%
735.6 gpm to B88.6 gpm

8 - inch

S lope 2.2%

Gertz
P r operty
MH 003

546.2 to 929.8 gpm

8-tnch

1B9.4 gpm to 520.8 gpm

Slope 1.21 %

Choking

B-inch
n - 003S

Sewer MaioHne
n

= O 015

In

735.6gpm

888.6gpm

In
Out

4 88 z gpro

561 0 gprp
520.8gpm

189.4gpm

Gem P r operty
546. 2 gpm to 929.6 gpm

Dr. Kinman estimated the backup into the Gertz building to be between 546.2 gallons per minute
to 920.6 gallons per minute using the Manning equation and the estimated “N” values. (Doc.
1966 at PAGEID 49251). He explained that the pipe segment downstream of MH 40513003 “is
very heavily damaged in terms of the pipe carrying away its designated volume. And since it
can’t get away and it’s coming in at higher slopes, and the opening then that’s available to it is to
go up into the Gertz building.” (Id. at PAGEID 49252). In other words, the volume of water
coming into the Sanitary Sewer pipe from the Cohen lateral and upstream of that lateral
exceeded the volume of water able to flow out of the Sanitary Sewer pipe below MH 40513003
because of pipe defects, slope, and other factors. As a result, sewer water entered and backed up
into the path of least resistance—the Gertz laterals. (Id. at PAGEID 49252).
Subsequent to his direct testimony on September 17, 2021, Dr. Kinman realized he had
made mistakes in the calculation of his “adaptation of the Manning Equation to the flow in the
42

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sanitary sewer at and near 2700 Highland Avenue.” (Gertz Ex. 52, Doc. 1925, Kinman Aff., ¶
4). Dr. Kinman re-calculated the numbers referenced in his Manning equation and ensured that
the new calculations were accurate. (Id.). Dr. Kinman stated that the calculation errors did “not
affect his opinion that the flow in the main line of the sanitary sewer and the pipes leading from
the Cohen building caused a back-up at the Gertz building at 2700 Highland Avenue.” (Id., ¶ 5).
Dr. Kinman depicted his Manning flow equation using the re-calculated numbers:

Aueu,:sr ZS, 2016 Flow Calcul.atious a.s:2'700 lllgblandAve
MaJtnirla Flow Equation. 'With n =- a..01.S or n • o.oss

.· &-inch
Slop,a2..Z%

s;,,ll,:n
~~o.,? to

700~,,m»n

#tJ.t.o'/a~m

8-tnch
Sloii,i!:1.21.%

Choking

8-incb Se'Wm::MaJnlino•·

=ru!llli . .
Io JiS l~,s--- _:

lo qe>a,7

gpni

I gprn

.

~

~ 2.,.,3

Gertz Pmppcy
gpm to/"d?2...'gpm.

t1~8,,6gptn

@ 4 6' rpm

(Doc. 1925 at PAGEID 46315).
According to his Manning equation calculations, independent of any flow coming from
the Cohen lateral, there were 381.5 to 888.6 gallons per minute flowing through the Sanitary
Sewer pipe upstream of the Gertz property. In his expert reports, however, Dr. Kinman did not
analyze how much groundwater he estimated was entering this pipe from upstream. (Id. at
PAGEID 49372). When asked how it was possible for that amount of water to enter the pipe
upstream of the Gertz property, Dr. Kinman testified, “There are possible ways for the
groundwater, yes. There are not constructed 12 ways.” (Id. at PAGEID 49372). He did not

12

Dr. Kinman testified that he used the term “constructed” to mean laterals that are constructed to convey sewage

43

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further elaborate this point.
Although Dr. Kinman was “focused on the main [basement] lateral down below Manhole
3,” he opined it was likely the three first floor laterals of the Gertz building also backed up. (Id.
at PAGEID 49373). He testified:
I did not conclude in my report that those three laterals backed up because I didn’t
know. I’m saying that based upon the hydraulic jump considerations, it’s most
likely they did back up also. I focused on the lateral right below Manhole 3 because
that is the closest vertical elevation to the Cohen building.
(Id. at PAGEID 49374). Dr. Kinman explained there is “not much in terms of the difference
between seven and eight feet in terms of if it switches to pressure flow in the jump, they both
would back up.” (Id. at PAGEID 49374). Under Dr. Kinman’s pressure flow analysis, all three
first floor laterals, which are at the same heights, would have “most likely” backed up. (Id. at
PAGEID 49375). Dr. Kinman explained that sewage water from the Sanitary Sewer could reach
the main first floor of the Gertz building through a “hydraulic jump caused by obstacles in the
pipe. . . .” (Doc. 1967 at PAGEID 49429).
Dr. Barton’s rebuttal opinion
Dr. Barton disagreed with Dr. Kinman’s conclusion that “the elevation head on the Gertz
floor pipe was found to be 4.87 feet.” (Doc. 1967 at PAGEID 49477). Dr. Barton stated that Dr.
Kinman’s elevation head is based on the total dynamic head at the Gertz property. (Id.).
According to Dr. Barton, Dr. Kinman’s opinion neglects “the fact that there is a sewer at the
bottom of that pipe.” (Id.). He testified that Dr. Kinman’s conclusion of 4.87 feet of elevation
head would mean the Sanitary Sewer pipe downstream of the Gertz Property was 100% blocked,

from the point of generation out to the main line, as opposed to a hole in a pipe that allows groundwater to enter the
pipe. (Doc. 1967 at PAGEID 49428).

44

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but Dr. Kinman’s “report makes no such supposition or claim.” (Id. at PAGEID 49478; MSD
Ex. 14; Doc. 1866-14 at PAGEID 44711). He explained that the pressure head would change
with anything less than 100% blockage and reduce the ability of the Gertz Sanitary Sewer lateral
to convey sewage to the Gertz basement. For example, a blockage of “zero” would mean there
was no hydraulic head on the Gertz Sanitary Sewer lateral, meaning there was no pressure
pushing sanitary waste up the Gertz lateral.
To analyze this issue, Dr. Barton performed Computational Fluid Dynamics (CFD)
modeling, which is used to analyze small sections of a sewer with complicated hydraulics. The
CFD model looked at potential blockages in the Sanitary Sewer pipe and storm water from the
Cohen catch basins entering the Sanitary Sewer pipe. He analyzed both to determine when
sanitary flow would enter the Gertz basement through the building lateral.
Dr. Barton stated that he did not “know how the two [Cohen] catch basins were
connected . . . [s]o [he] took the conservative approach that they were separately connected to the
system.” (Id. at PAGEID 49491). Variables such as geometry, size, angles, and shapes of pipes;
the presence of manholes, outlets, and inlets; and flood elevation are used to determine hydraulic
grade line. (Id. at PAGEID 49480). Based on eight-inch Cohen lateral lines with no blockage of
the downstream Sanitary Sewer line (outfall), the hydraulic grade line (elevation of the water
surface in the lateral with zero obstruction of the downstream pipe) would reach 617.38 feet into
the Gertz lateral, which was below the basement floor elevation of 622.30 feet. (Id.). Dr. Barton
reviewed the video of the downstream Sanitary Sewer segment to determine the blockage
referenced in Dr. Kinman’s report and found at most an approximate 17% blockage of the pipe.
Dr. Barton then assumed a conservative estimate of 25% and 50% blockage of the Sanitary
45

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Sewer to determine the effect on the elevation of water into the Gertz lateral. According to Dr.
Barton, even with a 50% blockage in the downstream Sanitary Sewer line the water would not
back up high enough to reach the Gertz basement floor level of 622.30 feet. (Id. at PAGEID
49481).

Dr. Barton testified that his CFD model was based on two assumptions that he later
learned were incorrect and that actually made him more confident in his conclusions. (Doc.
1967 at PAGEID 49552). First, his model assumed there were two separate eight-inch pipes
from the Cohen catch basins to the Cohen lateral. Dr. Barton subsequently discovered from Mr.
Beebe’s deposition that the Cohen catch basins were actually connected by four-inch, not eightinch, pipes to the eight-inch Cohen lateral. Dr. Barton testified that a four-inch pipe contains
one-fourth the flow of an eight-inch pipe due to hydraulic radius. Dr. Barton opined, “There’s
no way this system would have backed up with two four-inch pipes.” (Id. at PAGEID 49489).
Second, when he made the model, Dr. Barton was not aware that the Cohen catch basins were
completely filled with debris, so much so that Mr. Beebe used Bobcats to clean them out the day
after the storm. This further reduced the flow from the Cohen catch basins to the Sanitary Sewer
leading Dr. Barton to conclude there was “no possibility of flooding to the Gertz basement.” (Id.
at PAGEID 49490).
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Dr. Kinman criticized Dr. Barton’s use of computer models and computational tactical
fluid dynamics models like CFD because they did not rely on valid or “hard” data. (Doc. 1971 at
PAGEID 50070). For example, Dr. Kinman stated that Dr. Barton did not consider water
entering the Cohen lateral from bathroom fixtures that were cut off at floor level. (Doc. 1971 at
PAGEID 50067). Dr. Kinman further testified that Dr. Barton’s assumptions about bends in the
Cohen catch basin pipes were unfounded because MSD’s field investigation showed the catch
basin drains connected to the Cohen lateral in a general sweeping curve. Dr. Kinman stated that
adding bends to a pipe increases head loss, which in turn reduces flow from the catch basins to
the Cohen lateral and Sanitary Sewer. (Doc. 1971 PAGEID 50069). Dr. Kinman opined that
due to a lack of reliable data, Dr. Barton’s model predictions of what happened during the storm
would be incorrect. (Doc. 1971 at PAGEID 50070).
Dr. Barton also discussed what was described by Dr. Kinman as a significant obstruction
downstream from the Gertz lateral. The video of the pipe showed a block-like obstruction at
19.6 feet. (MSD Ex. 38). However, when the camera truck rig was retracted and ran over the
obstruction, the obstruction flattened out. Dr. Barton testified that what appeared to be a
“blockage” on the video was most likely toilet paper which was easily dispersed by the force of
the encounter with the video camera and did not present an obstruction to the flow of fluid within
the pipe.
j On Return by Camera

47

I

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Dr. Barton also examined the defect Dr. Kinman identified in the Sanitary Sewer pipe
between MH 40513003 and MH 40513002 to determine the nature of the obstruction and its
effect on flow. He reviewed the video of the relevant pipe segment and confirmed with the
Wastewater Collection Department the nature of the blockage:
Although RNK [Dr. Kinman] infers that this is a serious sewer condition problem,
it was not. The minimal obstruction was only a deposit on the side of the pipe
which caught the edge of the camera rig. It obstructs less than 12% of the pipe
capacity. More importantly, it is between the tap from the Cohen property catch
basins and the Gertz Property tap. Thus, it blocks upstream flow. It serves to
reduce, not increase the level in the sewer downstream at the Gertz Property tap.
(MSD Ex. 14, Doc. 1866-14 at PAGEID 44714). Dr. Barton’s rebuttal report includes figures
depicting the obstruction, and he testified about the calculations and method he used to
determine the 12% obstruction.

,

12%
Fil!ure 10: graphic depicting the 12" pipe obstruction of the deposit shown In
fi1ure 9: c1men, footige of lhe obUrucllon which prenn1ed

omen, pnu1e

Fisure 9.

(MSD Ex. 14, Figs. 9 and 10, Doc. 1967 at PAGEID 49501-02). Dr. Barton reiterated that his
CFD model included free flow from the Cohen lateral to the Gertz lateral and did not include this
obstruction, thereby providing “the most conservative estimate of what that level could have
been,” in other words, “the highest possible level.” (Id. at PAGEID 49504).
Dr. Kinman testified that the 12% obstruction was only one of three factors that could
trigger a hydraulic jump: (1) large obstructions and obstacles, such as a large rock or brick; (2) a
change in slope of the main Sanitary Sewer line; and/or (3) infiltration of storm water and ground
water from holes in the pipe and fractures, all of which were present in the main Sanitary Sewer
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line near the Gertz sanitary lateral. (Doc. 1971 at PAGEID 50103-04).
Dr. Barton testified that he looked for evidence that the Sanitary Sewer system backed up
but found none. The only evidence of a surcharge was one-half mile downstream, which would
not affect the Gertz lateral. He “saw ample evidence that confirmed to me that the storm system
was significantly flooded and that there’s eight drains connected to the basement.” (Id. at
PAGEID 49506).
Dr. Barton addressed Dr. Kinman’s modified opinion that the hydraulic head was the
same on both sides of an open, flowing pipe. (MSD Ex. 16; Doc. 1967 at PAGEID 49512).

According to Dr. Barton, Dr. Kinman’s figure does not account for losses in flow in the Cohen
lateral caused by inlets, twists, turns and junctions. (MSD Ex. 16; Doc. 1967 at PAGEID
49512). He contrasted this with the CFD model, which calculated the losses from all sources.
Dr. Barton also testified that the hydraulic head is never the same across an open pipe; it has to
be 100% blocked in order for the head to be the same on both sides. (Doc. 1967 at PAGEID
49513). 13 If the pipe is not 100% blocked, some amount of water will drain, producing a
13

Dr. Barton gave this example:
[I]f the fact that an open drain could have the same hydraulic head on both sides were true, then
every single household, every time you drained the sink, the bathtub should flush up because the
bathtub is lower than the sink. So if I have a full sink of water and I pull the plug, it should come
up my shower drain. If it actually comes up my shower drain if I had the same head on both sides,
I call the plumber because my drain is plugged. The fact that the drain is open means that I can pull
my sink plug, I can pour as much water as I want down there, and it drains out the line.

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velocity, which in turn produces losses along the pipe as it moves. (Doc. 1967 at PAGEID
49513). He testified his CFD model answers the question of the amount of blockage needed
before the Gertz Property will flood.
Dr. Barton also disputed Dr. Kinman’s use of the Manning equation and his conclusions.
Dr. Barton explained that the Manning equation does not identify the amount of flow in a pipe on
any given day or under a variety of circumstances. Rather, the Manning equation identifies how
much flow the pipe will carry when it is full. He stated that Dr. Kinman incorrectly assumes that
the flow within the pipe is the same as the capacity designated by the Manning equation without
identifying a source of the flow. According to Dr. Barton, Dr. Kinman translates the capacity of
the pipe into a source of flow and speculates on sources of flow without showing the quantity of
flow from those sources. (Doc. 1967 at PAGEID 49517). Dr. Barton also noted that Dr.
Kinman’s Manning equation fails to account for any losses from the Cohen catch basins,
depicting them as a straight single pipe with no losses. (Doc. 1967 at PAGEID 49519).
Dr. Barton was surprised that Dr. Kinman included the three first floor Gertz laterals in
his Manning equation depiction because flow from these three laterals had not previously been
mentioned.

-

s ic.,.~1"-

j l/,4i,P•- •ft- = -

.&tnm.11•-~Q.L!.'Jll:I.

.-.JLilll · .

1. . .,, ....-~ -

~~

,U,.t:-

~:;:

Dr. Barton testified that more importantly:

(Doc. 1967 at PAGEID 49513).

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[T]he first floor is eight to nine feet above the Gertz basement, so [Dr. Kinman]
was drawing hydraulic elevation showing 4.87 feet of head from the Cohen
property, and yet now was indicating arrows that were some nine feet above the
basement of the Gertz floor, which would be four or five feet above the hydraulic
head that he had drawn. And . . . there was no explanation as to how this flow rate
would be coming out of those pipes when they’re higher than the driving force.
(Doc. 1967 at PAGEID 49520). In other words, Dr. Kinman’s assumption of 4.87 feet of head is
inconsistent with water pushing through the three upstream laterals which are four or five feet
above that hydraulic head. Dr. Barton testified that based on his CFD model with an assumption
of 50% blockage, neither the basement nor the first floor laterals would back up. (Doc. 1967 at
PAGEID 49520).
Dr. Barton also criticized Dr. Kinman’s use of the Manning equation because it fails to
account for head in the sewer pipe. He testified that the Manning equation is based on pipe
slope, which becomes irrelevant once there is pressure flow within a pipe. (Doc. 1967 at
PAGEID 49528-29). According to Dr. Barton, Dr. Kinman inconsistently used the Manning
equation to estimate flow in the pipe when he previously postulated that there was hydraulic
head pressure above the top of the pipe at the upstream end as depicted in Figure 1. (Id.; MSD
Ex. 16 at 5).
Dr. Barton further disputed Dr. Kinman’s conclusion that hydraulic jump caused sewer
water to back up into the Gertz laterals. Dr. Barton explained that “[h]ydraulic jumps are when
supercritical flow become subcritical flow, steep fast flow becomes slow deep flow.” (Doc.
1967 at PAGEID 49530). He testified that hydraulic jumps increase the water level downstream,
not upstream:
Hydraulic jumps always increase the level of the water when it goes through
hydraulic jump downstream because the energy of the velocity is converted into the
depth. It is not, as was incorrectly stated, a case of switching from Manning’s to
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pressure. That is not the case of a hydraulic jump.
***
So the concept of a hydraulic jump increasing the water level upstream was just –
it’s flat wrong. The hydraulic choking, what he was saying was I have these
turbulent pockets that are occurring in the pipe, and they’re causing – the water in
these turbulent pockets is causing the lateral to back up seven or eight feet. And
we have obstructions and encrustations at a million locations at MSD system. . . .
To say that an obstruction all of a sudden causes the water itself to choke and then
push up an 8-foot lateral is just unverified. There’s no evidence of it. . . .
The other point to make is that if this is happening, if this were to be happening,
why don’t we consider it on the other side, where we have all this stuff coming
down the Cohen pipe, right angles, junctions with the mainline, real serious
turbulence issues, and why is that not causing the problem on the Cohen side.
Why is it all of a sudden just where our lateral is, and why isn’t it causing problems
in other places where we have obstructions in our system. It’s just – there’s no
evidence for it. Zero evidence. . . .
(Doc. 1967 at PAGEID 49530-31).
Dr. Barton further testified that Dr. Kinman’s “modified report incorrectly states that
when water ponds during dry weather, it affects flow rates when the pipes are under pressure
conditions.” (Doc. 1967 at PAGEID 49532). Dr. Barton explained that ponded water in a pipe
has no impact on the capacity of the pipe. He testified that “in the case of pressure flow, the pipe
is full of water. It’s not being backed up by its own water.” (Id.). Dr. Barton reported that this
phenomenon is easily demonstrated by water main pipes, which are 100% ponded. That pipe is
full and has zero flow when water is not being used “but no obstruction from the ‘water’ when
subjected to pressure.” (MSD Ex. 16 at 5).
Dr. Barton also disagreed with Dr. Kinman’s opinion that the CFD model was an
inappropriate way to calculate the flows. Dr. Barton identified the CFD model as the gold
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standard utilized across the industry to determine flows in light of complicated local hydraulic
conditions, like those presented in this case. (Doc. 1967 at PAGEID 49533).
Dr. Barton also opined that contrary to Dr. Kinman’s modified report, many small defects
within the pipe do not add up to a large blockage. He explained that a piece of corrugated pipe
demonstrates that a number of small defects do not add up to a major obstruction:

Dr. Barton explained:
The corrugated pipe in the figure is essentially a 4.5 inch pipe with about fifteen
obstructions every foot. Each obstruction represents about 20% of the pipe crosssection. In a 100' section of pipe there would be 1,500 20% obstructions. In this
case, do we consider the pipe blocked after we pass five of these (20
+20+20+20+20 = 100% blocked)? Or after we have passed the first 1,500 in 100'
No! Even with 1,500 obstructions in a 100 foot section we still consider it as a 4"
pipe (4.5 inches less 20%). Why do we consider it a 4" pipe? Because when we
look down the pipe we see a 4" opening all the way through.
It should be self-evident that the overall degree of obstruction is not derived by
adding the individual defects together as the RNK Modified Report repeatedly
asserts. Rather, the percent obstruction is conservatively estimated from the crosssectional area of the most restricting location. Here, it is 12%.
(MSD Ex. 16 at 6).
Dr. Barton also reviewed the more than 2,000 photographs submitted in this case. The
photographs he viewed did not show feces or toilet paper but an abundance of mud, debris and
“storm muck.” (Doc. 1967 at PAGEID 49538-42). He opined that the white dots appearing on
hundreds of photos were not toilet paper but rather Styrofoam particles. The gray and brown
residue lines present on furniture legs were consistent with the normal debris markings he has
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observed from muddy storm water. He also observed “gravelly sand debris” around the storm
drains in the basement. To the extent there was observable debris around the Sanitary Sewer
drain, he opined this would be consistent with the storm drains surcharging into the basement
and flowing towards the only open drain—the Sanitary Sewer drain.
Dr. Barton also found Dr. Kinman’s opinion that the wall of MH 40513003 did not show
signs of surcharge because clear groundwater essentially washed the muck off the wall to be
inconsistent with the other evidence:
So to me storm water, muddy storm water, sanitary -- sorry, storm sewers -- storm
sewer pressurized, that explains that. Piles of muck in the Cohen property, storm
water supplies that, but somehow the sanitary main has clear water, not leaving any
residual in our manhole, but leaving all this residual -- the story doesn’t fit. It’s
completely consistent with -- the storm sewer flooding is completely inconsistent
with the sanitary sewer flooding.
(Doc. 1967 at PAGEID 49543). Dr. Barton opined that if muddy water was coming from the
sanitary sewer, then there would be observable and “telltale” signs of surcharging in the
manhole. (Id.).
When asked to assume the presence of feces or toilet paper on the floor of a building, Dr.
Barton testified there are two ways that could happen. First, there could have been a backup of a
Sanitary Sewer. Second, there could have been a backup of the building lateral unrelated to a
surcharge of the Sanitary Sewer. (Doc. 1968 at PAGEID 49643). He noted, however, that the
first floor laterals were three or four feet above the flood level of the Cohen property. When
asked how toilet paper and feces could have been observed on the first floor, as the Claimants
testified, Dr. Barton stated that it was not the result of a backup of MSD’s Sanitary Sewer. He
testified that either internal or external connections to the sanitary lateral can cause a backup of
toilet paper and feces into buildings. According to Dr. Barton, MSD has “seen many, many
54

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cases where the external connections of whatever cause the flooding in the building in the
basement” because building laterals carry human waste and toilet paper in them. (Doc. 1967 at
PAGEID 49545). Dr. Barton testified:
So it’s very common for that sort of situation. And that is consistent with it being
one of the three, not all three.
In the sanitary sewer, as you go up the hill, the head’s higher, it should be all three
of them, especially the upper ones that are going off. So if we’re only seeing one,
that’s entirely consistent with the common effect we see repeatedly that the building
sewer backs up its own lateral. . . . If the sanitary sewer backed up, we would
expect all three. That would be typical. To only see one strongly supports the
suggestion that we see commonly, that a building sewer backed itself up and
flushed out whatever was in that lateral.
(Doc. 1967 at PAGEID 49546-47).
Dr. Barton also disputed Dr. Kinman’s conclusion that the Sanitary Sewer pipe was one
quarter to one-third full of flow during dry weather conditions. Dr. Barton testified that if Figure
9 depicts dry weather flow of groundwater that entered the pipe, it is one-twentieth to one-fiftieth
full. (Doc. 1967 at PAGEID 49503):

Figure 9: camera footage of the obstruction which prevented camera passage

III. Resolution
Under the Consent Decree, property owners may be compensated for personal or real
property damage caused by (1) inadequate capacity in MSD’s Sewer System, or (2) MSD’s
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negligent maintenance, destruction, operation or upkeep of the Sewer System. (Doc. 131,
Consent Decree, Exhibit 8 at 1). In determining the cause of SBU, MSD must exercise its good
faith reasonable engineering judgment and consider the following non-exclusive factors: amount
of precipitation, property SBU history, condition of the sewer system in the neighborhood,
results of a visual inspection of the neighborhood to look for signs of overland flooding,
neighborhood SBU history, capacity of nearby public sewer lines, and topography. (Doc. 131,
Consent Decree, Ex. 8 at 2). Damages arising from basement backups for which MSD is
responsible are limited to documented real and personal property. Id. Claimants who seek
review of the denial of an SBU claim bear the burden of proof to show that the backup of
wastewater into their property was caused by inadequate capacity in MSD’s Sanitary Sewer
system (a sewer surcharge) and not by overland flooding or blockages in the homeowner’s
privately-owned building sewer line. (Doc. 131, Consent Decree, Ex. 8 at 1).
As an initial matter, the Court has ruled that the Claimants were precluded from
introducing evidence via Dr. Kinman’s testimony about any alleged “negligent maintenance,
destruction, operation or upkeep of the Sewer System.” (Doc. 131, Consent Decree, Exhibit 8 at
1). Dr. Kinman’s expert reports did not include any opinions or analysis on MSD’s alleged
negligence in maintaining the Sanitary Sewer system, and the Court sustained MSD’s objection
to the belated attempt to introduce such evidence at the hearing. (Doc. 1970 at PAGEID 4998384). Therefore, the Court does not consider any such evidence in its decision.
Claimants have not established by a preponderance of the evidence that any alleged
wastewater backup into the basement and first floor of the Gertz property on August 28, 2016
was caused by inadequate capacity in MSD’s Sanitary Sewer system. The Court has considered
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numerous factors in reaching this conclusion and, based on those factors, concludes that the
Claimants’ appeal is denied.
The Gertz Property is tied into the head end segment of the public Sanitary Sewer line.
There is only one active Sanitary Sewer lateral tap from a woodworking factory upstream of the
Gertz Property. The storm occurred on Sunday, August 28, 2016, and there was no occupancy in
that building. Therefore, there was no added upstream sanitary flow to the Sanitary Sewer.
Claimants argue there are four unknown 8-inch taps in the upstream manhole bench walls
on the South side of the Gertz Property that “could have been designed to convey storm sewer
water into the 8-inch main sanitary line from telephone chambers, making the main sanitary line
now a combined sewer line.” (Doc. 2004 at PAGEID 51358, referencing MSD Ex. 8, Technical
Field Investigation Report No. 5). Claimants argue these taps could have contributed storm
water flow to the Sanitary Sewer, but any impact from these lines is unknown because MSD
failed to return to complete its investigation of these lateral lines. (Id.). Mr. Pangallo testified,
however, that these lateral lines were all capped with no flow entering the Sanitary Sewer. (Doc.
1961 at PAGEID 48546). In response to the Court’s question, Mr. Pangallo confirmed that these
laterals “were capped at the curb line of the street, so they weren’t in use. They had physical
caps on the end of them.” (Doc. 1961 at PAGEID 48553). 14 Claimants also argue that another
lateral from a torn down building upstream of the Gertz Property could have possibly allowed
storm water to enter the Sanitary Sewer line. (Doc. 2023 at PAGEID 52056; Doc. 1961 at
PAGEID 48552). There is no evidence of an improper storm water connection to this lateral or
that storm water actually entered this line. To conclude otherwise would be speculative.

14

Mr. Pangallo was never asked about this specific issue by Claimants’ counsel on cross-examination.

57

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Therefore, the Court is not persuaded that any additional flow from these lines entered the
Sanitary Sewer.
In sum, the public Sanitary Sewer line upstream of the Gertz laterals likely received no
additional flow from the Sanitary Sewer connections (with the exception of the Cohen lateral as
discussed below). It is therefore unlikely that a Sanitary Sewer backup caused the water damage
to the Gertz Property.
The Court also considers the Property and neighborhood Sanitary Sewer backup history.
There have been no previous reports of Sanitary Sewer backups at the Gertz Property and no
known capacity problems with that sewer. No other properties on the same Highland Avenue
Sanitary Sewer segment in the immediate vicinity of the Gertz Property reported a Sanitary
Sewer backup. If the Gertz Property had a Sanitary Sewer backup, it is likely that properties
downstream of the Gertz lateral, which sit at lower elevations, would have also experienced an
SBU. Neither Mr. Gochoel nor Cohen Recycling reported or experienced a backup of their
Sanitary Sewer building laterals from the August 28, 2016 rain event, and neither of their
properties has a history of any reported SBUs. 15 MSD received no other reports of SBU in the
vicinity, and Claimants offered no evidence of such backups. The lack of history of SBUs and
the absence of other properties experiencing SBU on August 28, 2016 supports the conclusion
that the mainline Sanitary Sewer did not back up.

Claimants argue that “[t]he testimony from Mr. Beebe at the Cohen building proved that ‘an unreported’ sewer
backup in its parking lot was a ‘regular’ experience that actually occurred on several occasions even though none of
these backups were reported to MSD.” (Doc. 2023 at PAGEID 52119, citing Doc. 1965 at PAGEID 49132). This is
not accurate. Mr. Beebe testified that the catch basins repeatedly backed up after a heavy rain because “they
wouldn’t be able to handle the water” and get plugged with debris, requiring periodic cleaning. (Doc. 1965 at
PAGEID 49132). He did not testify that the Cohen property experienced a Sanitary Sewer backup.
15

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The Court also considers whether overland flooding caused or contributed to the flooding
of the Gertz Property. There is no dispute that overland flooding inundated the Norwood Storm
Sewer, resulting in a surcharge of the Storm Sewer and water flow down Highland Avenue. The
evidence on whether overland flooding actually entered the Gertz property through doorways or
window wells, however, is inconclusive. There is conflicting evidence on the pathway of the
flow of overland flooding from the hill upstream of the Gertz Property and the elevation of such
flow. Dr. Kinman testified the elevation and slope of the surrounding topography directed the
flow away from Highland Avenue toward the Cohen property, resulting in flooding and ponding
of water on that property. Dr. Barton testified that given the elevation of the flooding on the
Cohen property as determined by Dr. Kinman and the relative elevations of the Cohen property,
the Gertz property, and MH 40514003, the flood water necessarily flowed from the Cohen
property across the Highland Avenue to the Gertz Property. As part of his field investigation,
Mr. Pangallo observed a water line on the Gertz building front wall signifying the flood level.
Mr. Gertz testified that this so-called water line was actually a mark from lawn mower grass
clippings. Mr. Gertz pointed out that portions of the building that were not adjacent to the lawn,
like concrete walkways, did not show the “water line” identified by MSD, bolstering his
conclusion that the line was a grass stain. Mr. Gertz also performed an investigation by filling a
window well and door well with water from a garden hose to test for building leaks. While
video of the event showed no water entering the building from the window well, a small amount
of water seeped into the building from the door well to the basement floor. However, the
conditions of Mr. Gertz’s investigation were dissimilar to the rain storm, minimizing the
significance of his findings. Finally, the rainy day video, which was taken close to 8:00 p.m.
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after the peak of the rainfall, showed water traveling down Highland Avenue and breaching the
curb at certain points. The Court cannot conclude one way or the other whether overland
flooding contributed to the Gertz’s flooded basement by entering through doors, windows, or
cracks in the foundation of the building.
The Court next considers the impact of the Norwood Storm Sewer on the Gertz Property
damage. The evidence is overwhelming that the Norwood Storm Sewer could not carry the
August 28, 2016 rainfall and surcharged. The testimony of Dr. Barton, Mr. Pittinger, Dr.
Kinman, and Mr. Beebe, as well as the rainy day video, support this conclusion. The evidence
establishes that eight of the nine Gertz basement laterals were improperly connected to the
Norwood Storm Sewer line instead of the MSD Sanitary Sewer line. As a result, the eight storm
laterals connected to the Gertz building basement, which were at a lower elevation than the
surcharged Storm Sewer inlets on Highland Avenue, overflowed into the basement carrying
storm water, muck, and debris from the surrounding hillside, area, and streets. This is one clear
cause of the Gertz basement flooding, and the Consent Decree does not provide damages for
solely a Storm Sewer backup.
The Court next examines the conditions of the Sanitary Sewer system connected to the
Gertz building laterals. In investigating Sanitary Sewer backups, manholes are examined for
signs of surcharging. During the surcharge of a manhole, toilet paper and debris catch on the
walls and ladder steps of the manhole. In addition, an observable surcharge ring indicates the
height of the surcharge within the manhole. None of the manholes serving the Gertz Property or
those immediately downstream of the Property showed signs of surcharge, with the exception of
MH 42626009, which was 2,500 feet downstream from the Gertz Property. (Doc. 1966 at
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PAGEID 49235; Doc. 1967 at PAGEID 49496). The Court places little weight on Dr. Kinman’s
opinion that clear ground water essentially washed clean the manhole walls in front of the Gertz
property. The photographs and testimony in this case indicate that the Gertz basement floor was
covered in mud and sand, with debris rings around the furniture legs. The Cohen catch basins
collected debris and muck, with some of that flow going into the Sanitary Sewer. The rainy day
video showed brown, dirty water flowing down Highland Avenue. It is not logical that the
Sanitary Sewer manholes connected to the Property laterals showed no similar signs of debris or
surcharge.
The Court further finds the evidence of surcharge in MH 42626009 irrelevant to whether
the Sanitary Sewer segment to which the Gertz Property connected backed up. There is a 55foot difference in elevation between the Gertz basement lateral and the invert of MH 42626009.
The surcharged manhole, MH 42626009, is located at the bottom of a steep hill, with the rim of
that manhole at an elevation of 43.98 feet lower than the Gertz lateral connection. Dr. Barton
explained that where, as here, the Sanitary Sewer pipe is very steep, the downstream tailwater
does not affect upstream levels. He also testified that the 14 intervening manholes between MH
42626009 and the Gertz Property would release any flow of sewage from a surcharge of MH
42626009 before it could reach the Gertz lateral. When asked about this latter point, Dr. Kinman
testified that the intervening manholes would “not necessarily” be a release point for the
overflow, but he failed to explain the underlying bases for his conclusion in a cogent fashion.
(Doc. 1966 at PAGEID 49235-36). The Court gives little weight to Dr. Kinman’s conclusion
and finds Dr. Barton’s explanation and conclusion more persuasive.
The Court further considers the internal condition of the Sanitary Sewer pipe connected
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to the Gertz laterals. MSD’s TV video inspections showed the presence of rocks, grease,
“drippers,” broken pipe, encrustations, ponding water, and deposits at various locations within
the relevant segments. The significance of those findings depends on whether the conditions of
the Sanitary Sewer line in January 2017 as depicted in the videos accurately reflect the
conditions as they existed at the time of the August 28, 2016 storm.
It is unknown whether and to what extent rocks and other movable debris may have been
present in the Sanitary Sewer in August 2016. MSD’s videos were taken from January 24 to 26,
2017, some five months after the rain event. MSD argues that the size and location of any debris
in the Sanitary Sewer at the time of the August 28, 2016 storm is unknown. MSD points to Mr.
Beebe’s testimony that after removing the muck and debris from the Cohen catch basins after the
rain event, the line was jetted to clear any remaining debris, suggesting that any rocks or debris
in the line could have been flushed into the line from the Cohen lateral. The Court recognizes
that Claimants had no control over the timing of MSD’s investigation of the Sanitary Sewer
system five months after the rain event because of the number of properties affected by the
August 2016 storm and MSD’s focus of resources on those properties experiencing an active
backup. Mr. Pittinger opined that MSD’s TV video “probably pretty accurately represents the
state of those sanitary sewers as they were in August. . . .” (Doc. 1962 at PAGEID 48710).
Given Mr. Pittinger’s opinion that the condition of the Sanitary Sewer in January 2017 was likely
the condition in August 2016, the Court will assume for purposes of this decision that the
condition in August 2016 was similar to that depicted in the videos.
The TV Inspection Reports and accompanying video descriptions demonstrate that MSD
subsequently replaced several sections of Sanitary Sewer line due to conditions found in the
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videos. (Gertz Exs. 25-30). Claimants argue that these conditions resulted in “major
replacement/relining of the pipes,” suggesting significant structural damage in the Sanitary
Sewer line. (Doc. 2004 at PAGEID 51350). Mr. Pangallo and Mr. Pittinger, however, testified
that they did not observe any structural issues within the pipe, such as a collapse, that might have
blocked the flow of sewage through the pipe. Mr. Pittinger testified that neither the field reports
nor his review of the videos showed any significant defects in the main Sanitary Sewer serving
the Property. He defined a “significant defect” as a “blockage or collapse that would be enough
to severely restrict the flow and cause a backup.” (Doc. 1962 at PAGEID 48694). When asked
whether a hole in the pipe would be a “substantial defect,” he testified this was a defect that
represented a “potential failure of the pipe” but “[f]rom a flow perspective, it is not.” (Id. at
PAGEID 48694-95). Therefore, any repair or preventative maintenance on the pipe does not
signal a blockage of the line. The relevant consideration is not whether the condition of the pipe
required some repair but whether the particular condition had an impact on flow through the
pipe, such as a collapse or blockage of the pipe. The Court finds Mr. Pittinger’s testimony
credible and determines that MSD’s repair of these Sanitary Sewer segments does not indicate
defects like a collapse or blockage that would cause a backup of the Sanitary Sewer line.
The next issue concerns the other defects or incidents identified in MSD’s TV inspection
reports. Dr. Kinman testified that encrustations, heavy deposits, rocks, broken pipe, sags, holes,
fractures, slope changes, and obstacles in the Sanitary Sewer pipe were impediments to water
and sewage flow. Dr. Kinman opined that these obstacles in the Sanitary Sewer caused changes
in velocity and turbulence within the sewer pipe. When combined with the additional flow from
the Cohen catch basins and groundwater, the pipe’s gravity flow changed to pressure flow
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causing the Sanitary Sewer to back up through the Gertz laterals into the Property via hydraulic
jumps. Dr. Kinman opined that the hydraulic jump was triggered by: (1) the brick or large rock,
which was two feet downstream from the Gertz lateral; (2) a 12% blockage eight feet upstream
from the Gertz lateral; and (3) a change in the slope from 3.5% to 1.2%. He further opined that
three sources of water entered the Sanitary Sewer pipe causing the backup into the Gertz
Property: sanitary flow, groundwater, and storm water entering the sanitary pipe from the Cohen
catch basins. (Doc. 1967 at PAGEID 49340). The Court places little weight on Dr. Kinman’s
opinions because they are based, in part, on faulty assumptions and unfounded conclusions not
set forth in his written expert opinion. In addition, Dr. Kinman did not consider the Consent
Decree factors that govern resolution of this matter.
Dr. Kinman opined that the presence of a large rock or brick in the lateral just
downstream of the Gertz basement lateral caused a choking of the Sanitary Sewer pipe. The
confluence of the brick and water flow caused a hydraulic jump in the pipe and pushed sewage
water into and up the Gertz basement and first floor laterals. Dr. Kinman testified that MSD’s
TV video showed a large brick-like object in the Sanitary Sewer pipe approximately 1.5 feet
below the junction of the Gertz lateral, which presented an impediment to flow and a trigger for a
hydraulic jump, as depicted in this still shot of the video (Gertz Ex. 38):

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The Court has again viewed the video of this obstruction. Following the location depicted in
Gertz Ex. 38, the camera pushes the brick to 247.70 feet upstream, altering the orientation of the
brick:

The camera then continues in reverse allowing a view of the brick at a location of 246.60 feet:

__ ---__ __

",.....,~ .,

........_....,
.._."' ........

The depiction of the brick at this location visually appears to be a much less significant
obstruction than that depicted in Gertz Ex. 38 and detracts from the persuasiveness of Dr.
Kinman’s opinion and Gertz Ex. 38.
More importantly, the TV camera easily moved the brick through the pipe. The video
shows the camera continues to push this brick an additional 2.2 feet to the location of 250.50
feet. The camera then moves past the rock to 252.60 feet, showing daylight through the holes of
the lid of MH 40513003. The camera’s ability to push the brick through the sewer pipe indicates
that any obstruction it may have presented was not permanent. Mr. Pittinger testified this rock,
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which was located “immediately downstream” of the Gertz lateral, would not cause him concern
because in the video he observed “how easily it was moved by the camera. . . . The cameras
have very limited power, so it [the rock] was not fixed. Any significant flow in that pipe would
move that [the brick] downstream with no effect on the flow.” (Doc. 1962 at PAGEID 4870304). The Court gives less weight to Dr. Kinman’s opinion on the effect of this brick on flow in
light of the evidence that it was easily moved by the camera and did not present a significant
obstruction.
Dr. Kinman’s opinion on hydraulic jump is additionally based on the other obstructions
he viewed in MSD’s videos of the Sanitary Sewer line. There are numerous still shots of MSD’s
TV video inspections upon which Dr. Kinman relied for his opinion, which are attached to the
Addenda to his Modified Expert Report. (Gertz Ex. 10). One is a screen shot of the sewer line
between MH 40513003 and MH 40513004 depicting what is labeled as a “large obstruction in
flow line of main sanitary sewer line”:

(Gertz Ex. 10, Addenda at Doc. 1867-3 at PAGEID 44853; Gertz Ex. 37, page 2). 16

In their rebuttal brief, Claimants allege they did not identify this exhibit as a “significant” obstruction at any time
and that MSD is attempting to manufacture an issue where there is none. Contrary to Claimants’ argument, their
own expert identified the exhibit as a “large obstruction” and attached it to his expert report in support of his
opinion.

16

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The identification of this “large obstruction” in the still shot is misleading. As MSD
points out, the video shows that when the camera truck rig retracted and ran over the obstruction,
the obstruction flattened out. Dr. Barton testified that upon retraction of the camera truck rig
over the obstruction, what appeared to be a “blockage” on the video was most likely toilet paper
which was easily dispersed by the force of the encounter with the video camera and did not
present an obstruction to the flow of fluid within the pipe:

On Approach by Camera

I

On Return by Camera

(MSD Ex. 38). Dr. Kinman’s overstatement of the significance of this “obstruction” detracts
from the overall credibility of his opinion.
Dr. Kinman also relied on the condition of the Sanitary Sewer line from MH 40513003 to
40513002 as reflected MSD’s TV Inspection Report of that sewer segment. He highlighted this
segment, noting that “this sewer was found by MSD to be so clogged that the camera inspection
had to be abandoned and re-attempted by going downstream from manhole 002.” (Gertz Ex. 9 at
Doc. 1867-2 at PAGEID 44779) (emphasis added). Dr. Kinman attached to the Addenda of his
Modified Report the MSD TV Inspection Report indicating the survey was abandoned at 11.00
feet due to “heavy deposits at this point.” (Gertz Ex. 10; Gertz Ex. 27). A photo of the
obstruction is included as the last page of Gertz Ex. 27 17:
17

The red arrow is not included in the original photo but was added by Dr. Barton in his analysis of the obstruction.

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Figure 9: camera footage of the obstruction which prevented camera passage

On further examination of the video identifying the defect reported by Dr. Kinman, Dr. Barton
determined that the obstruction was a deposit on the side of the pipe which caught the edge of the
camera rig. He opined the obstruction was minimal, obstructing less than 12% of the pipe
capacity. (MSD Ex. 14; Doc. 1866-14 at PAGEID 44714):

12%
~
Figure 10: graphic depicting the 12" pipe obst r uction of the deposit shown In
figure 9 .

(MSD Ex. 14, Fig. 10; Doc. 1967 at PAGEID 49501-02). Importantly, this 12% obstruction was
located between MH 40513003 and the Cohen catch basin connection upstream of the Gertz
Property lateral and would block flow to MH 40513003, thereby reducing, not increasing, the
flow entering the Gertz basement lateral. (Doc. 1967 at PAGEID 49504). In any event, in
examining the potential flow from the Cohen lateral, Dr. Barton’s CFD model did not include
this obstruction, thereby providing “the most conservative estimate of what that level could have
been.” (Id. at PAGEID 49505).
In his rebuttal, Dr. Kinman explained that “although technically it is reducing the flow by
12 percent, according to Dr. Barton, the ‘blockage,’ quote/unquote, is only part of the problem
with these encrustations because the jump would give you a hundred-percent blockage
downstream. So the 12 percent is only a small part of a hundred percent.” (Doc. 1971 at
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PAGEID 50103-04). Dr. Kinman’s explanation is confusing. It is not clear why an obstruction
of flow upstream would contribute to and cause a hydraulic jump downstream. To the extent Dr.
Kinman may be suggesting that the 12% obstruction was just one of many obstructions that
cumulatively blocked the Sanitary Sewer line and caused a hydraulic jump, the Court finds Dr.
Barton’s explanation on this point much more persuasive. As Dr. Barton explained using a
corrugated pipe as a demonstrative, the only relevant consideration for calculating obstruction
within a pipe is the largest obstruction, and not a cumulative adding of all the obstructions.
(Doc. 1967 at PAGEID 49535-37). The identification of these obstructions as significant in Dr.
Kinman’s Modified Report, when the evidence demonstrates they were not, detracts from the
overall persuasiveness of Dr. Kinman’s opinion about the condition of the Sanitary Sewer pipe
and the effects of the “obstructions” or “defects” he identified within the line.
Dr. Kinman also opined that a change in slope from 3.5% to 1.2% was a trigger for
hydraulic jump. Dr. Kinman testified that water entered MH 40513003 at a slope of 3.5% and
left the manhole at a slope of 1.2% and was “coming down faster than it can get away” so it
“climbs up into the Gertz building” as the path of least resistance. (Doc. 1966 at PAGEID
49224). However, Dr. Kinman failed to explain or analyze how the slope change would impact
flow, block flow in the pipe, or cause a hydraulic jump. In contrast, Dr. Barton analyzed the
slope of the Sanitary Sewer line from MH 40513003 to the surcharging manhole at MH
42616009 in his CFD modeling and determined those slopes did not cause a surcharge in MH
40513003. (Doc. 1971 at PAGEID 50111-12; MSD Ex. 27; MSD Ex. 28, Froude chart).
Dr. Kinman further opined that groundwater infiltrated the Sanitary Sewer line through
holes and leaking joints and “had a major impact on this particular backup.” (Doc. 1967 at
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PAGEID 49342). Dr. Kinman observed the Sanitary Sewer pipe one-quarter to one-third full of
groundwater by looking into the manhole “from the top of the manhole.” (Doc. 1967 at
PAGEID 49438; Gertz Ex. 31). He also testified that encrustations within the pipe evidenced the
presence of groundwater.
Dr. Kinman did not measure the dry weather flow of the Sanitary Sewer in determining
the amount of alleged groundwater within the sewer. He estimated the dry weather flow by
eyeballing the sewer from the open lid of a manhole. None of the photographs submitted
corroborate Dr. Kinman’s estimate of groundwater filling the pipe one-fourth to one-third full.
Mr. Pittinger acknowledged that by virtue of a clay pipe being underground, it was
subject to infiltration. He also testified, however, there is a significant delay from the time rain
falls to the time it influences groundwater infiltration into a sewer. Even if the Court concludes
that some amount of groundwater entered the Sanitary Sewer pipe, there is no evidence
establishing that the volume of groundwater that entered the pipe upstream was equivalent to the
volume determined in Dr. Kinman’s Manning equation. Dr. Kinman estimated there were 381.5
to 888.6 gallons of water per minute entering the Sanitary Sewer pipe upstream of the Gertz and
Cohen laterals. Dr. Kinman’s Manning equation assumes a completely full pipe of groundwater
and assumes, without evidence, that the capacity of the pipe is equivalent to the actual flow of
groundwater in the pipe. Dr. Kinman’s Modified Report states that five inches of rain dropped in
excess of 17 million gallons of water on the surface of 129 acres of watershed in 40 to 60
minutes. Yet, Dr. Kinman’s expert reports and addenda do not analyze the volume or impact of
groundwater in support of his opinion in this case. His “Findings” do not mention groundwater.
(Gertz Ex. 9, Doc. 1867-2 at PAGEID 44777). Dr. Kinman’s “Supporting Findings That Need
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To Be Highlighted” do not analyze the volume or effect of groundwater on flow through the
sewer pipe. (Id. at PAGEID 44778-79). Dr. Kinman’s “Discussion of Findings” do not mention
or analyze groundwater flow. (Id. at PAGEID 44780). Instead, Dr. Kinman discusses the impact
of storm water from the Cohen lateral and downstream issues with two 12-inch sewer lines
directed to a 10-inch sewer line (discussed above). (Id.). Dr. Kinman’s “Summary” does not
discuss groundwater. (Id. at PAGEID 44781). Dr. Kinman’s nine “Water Path Segments to
Assist in Understanding Sewer Back-up at 2700 Highland Ave.” do not discuss or analyze
groundwater. (Id. at PAGEID 44813). 18 Dr. Kinman’s Modified Report calculates the “Volume
of Water to Cohen Yard Drain.” (Id. at PAGEID 44814). There is no similar calculation of the
volume of water allegedly entering the upstream Sanitary Sewer pipe in the form of
groundwater. The only place where groundwater is mentioned in the Modified Report is in
connection with downstream impediments to flow (“Hole in pipe adds groundwater parameters
(head, volume, quality, etc.) to 8-inch sanitary sewer flow.”) (Id. at PAGEID 44815), not added
capacity or volume to the flow.
Nevertheless, at the hearing in this matter, Dr. Kinman testified that “groundwater had a
major impact on this particular backup.” (Doc. 1967 at PAGEID 49342). According to Dr.
Kinman, 14 million gallons of rainwater fell on the 35-acre railroad yard, which had a direct path
to the gravel bed surrounding the sanitary sewer; this rainwater raised the groundwater table five
inches; and this in turn created a loading factor, exerting pressure on the holes in the pipe, and
During the hearing, Dr. Kinman acknowledged that he did not mention groundwater in this list. (Doc. 1967 at
PAGEID 49343). However, he suggests a reason for this omission: “This is dated December the 16th of 2016. I
was early on in my investigation when I was locating these water path segments, and I didn’t have all the
information on the groundwater at the time.” (Id.). Dr. Kinman’s justification is unfounded. Dr. Kinman was not
even contacted by Mr. Gertz until May 2017 (Doc. 1966 at PAGEID 49212), and Dr. Kinman included the list of
Water Path Segments in his Modified Report, which was created after his August 2020 deposition. (Doc. 1967 at
PAGEID 49343). His suggested reason is inconsistent with the evidence in this case.
18

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forced groundwater in the pipe. (Doc. 1970 at PAGEID 49973). None of this factual
information is in Dr. Kinman’s expert reports, and his conclusions on the groundwater table,
loading factor, and pressure are unsupported by any explanations or calculations.
Dr. Kinman’s experts reports were required to contain a complete statement of all the
opinions he would express, the basis and reasons for those opinions, and the facts or data he
considered in forming his opinions. Fed. R. Civ. P. 26(a)(2)(B). Dr. Kinman’s expert reports do
not identify groundwater having “a major impact” or any particular significance in the Gertz
basement flooding. Therefore, the Court gives no weight to Dr. Kinman’s opinions on the effect
of groundwater on the Sanitary Sewer pipe capacity.
The Court also places little weight on Dr. Kinman’s opinion that the combination of
storm water from the Cohen catch basins entering the Sanitary Sewer pipe and obstacles
encountered within the Sanitary Sewer triggered a hydraulic jump. Dr. Kinman determined there
were 300 to 700 gallons per minute of storm water flowing through the Cohen catch basins and
Cohen lateral to the Sanitary Sewer. He opined that the volume of this flow, in combination with
the volume of water upstream of the Cohen lateral, exceeded the capacity of the Sanitary Sewer
pipe below MH 40513003. Dr. Kinman concluded that when this flow encountered the defects
within the pipe, a hydraulic jump occurred causing sewer water to back up into the Gertz laterals
as the path of least resistance.
Dr. Kinman’s opinion on the amount of storm water flowing through the Cohen catch
basins is based on the unfounded assumption that the catch basin drains were connected to the
Cohen lateral by 8-inch pipes. However, Cohen manager Mr. Beebe testified these were 4-inch,
not 8-inch pipes. Dr. Barton testified that the four-inch pipe contains one-fourth the flow of an
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eight-inch pipe due to hydraulic radius. Dr. Kinman agreed that using a four-inch as opposed to
an eight-inch pipe would be significant. (Doc. 1967 at PAGEID 49410). In addition, the
evidence establishes that the Cohen catch basins were completely filled with debris, so much so
that Mr. Beebe used Bobcats to clean them out the day after the storm, thereby further reducing
the flow from the Cohen catch basins into the Cohen lateral. Dr. Kinman’s analysis does not
account for the smaller circumference of the pipe and the debris-filled catch basins, both of
which would reduce the volume of water reaching the Sanitary Sewer.
Dr. Kinman’s Manning equation is also based on the assumption that the Cohen catch
basin drains connected in a general sweeping curve to the Cohen lateral. The exact configuration
of the connection between the Cohen catch basins and the Cohen lateral is unknown. MSD
diagramed the approximate location of the connection of the catch basin pipes to the Cohen
lateral using blue dashed lines. (MSD Ex. 9). The blue lines were intended to show connectivity
of the catch basins to the lateral, not actual physical location. (Doc. 1962 at PAGEID 48700).
Mr. Pittinger testified that there must have been some bends and connections in the pipes from
the catch basins to the Cohen lateral. He explained that there are “multiple inlets that tie into a
single point of connection, which inherently means that there are junctions and connections and
bends,” and “[t]here is no way to go from separate through a straight line into a single connection
without having some sort of fitting or bends or junctions.” (Doc. 1962 at PAGEID 48699-700).
The Court finds Mr. Pittinger’s testimony credible and persuasive and concludes that given the
location of the two Cohen catch basin drains there necessarily must be at least some bends in the
pipes to connect to the Cohen lateral.
Dr. Kinman’s Manning equation did not account for any bends in the Cohen catch basin
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drain pipes and depicted them as a straight pipe with no losses. Both Dr. Kinman and Dr. Barton
agreed that adding bends to the connection between the Cohen catch basin drain pipes and the
Cohen lateral increases the head loss, which in turn reduces the flow to the Cohen lateral and
Sanitary Sewer. Dr. Barton’s CFD model accounted for such losses and considered how a
blockage of the Sanitary Sewer pipe would impact the hydraulic head. Dr. Barton opined that
even if the pipe was 50% blocked, there would be inadequate head pressure to force water into
the Gertz lateral.
The Claimants criticize Dr. Barton’s report because he failed to consider a 40%
“blockage” of the Sanitary Sewer line between MH 40513003 and 40513004 at the 230.9 foot
location. (Gertz Ex. 38). Both Mr. Pangallo and Mr. Pittinger testified the video of this section
of pipe did not show a 40% blockage; Dr. Kinman described it as a “40 percent obstacle”; and
visually, the photo of the settled deposits in the sewer line depicted in Gertz Ex. 38 clearly do not
show a 40% blockage of the pipe. Therefore, Dr. Barton’s failure to consider this evidence does
not detract from his opinion.
Claimants also contend that Dr. Barton ignored “many additional blockages listed in the
TV videos in the 10-25% range” in giving his opinion. However, as Dr. Barton credibly
testified, in assessing impediment to flow, the largest impediment – not an accumulation of the
impediments – should be analyzed. Dr. Barton’s CFD model conservatively assumed both a
25% and a 50% impediment to flow, neither of which would result in a backup of the Gertz
Property lateral.
Claimants further criticize Dr. Barton’s CFD model, contending it ignores “the Cohen
bathroom fixtures cut off at floor level that emptied into the Cohen lateral. . . .” (Doc. 2004 at
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PAGEID 51316). However, Dr. Kinman did not include this information in his two expert
reports or addenda. Dr. Kinman’s Modified Report discusses and analyzes the two Cohen storm
water catch basins only. (Gertz Ex. 9, Doc. 1867-2 at PAGEID 44777, 44778, 44780, 44781,
44813). Dr. Kinman calculated the “Volume of Water to Cohen Yard Drain From 5 inches/hour
rain directly opposite 2700 Highland Ave.” (Id. at PAGEID 44814). However, Dr. Kinman did
not calculate the volume of water entering the Cohen active bathroom drains or the elevation of
those drains. (Doc. 1971 at PAGEID 50114). Dr. Barton testified he based his CFD model on
the information Dr. Kinman relied upon in his reports, and Dr. Kinman “never reported a
bathroom on the first floor.” (Doc. 1970 at PAGEID 49958). Therefore, Claimant’s criticism of
Dr. Barton’s CFD model is unfounded.
Dr. Kinman’s opinion also assumed a 100% blockage of the Sanitary Sewer line
downstream of the Gertz building basement lateral. There is no evidence that rocks,
encrustations, sags, etc. caused a complete blockage of the pipe. Nonetheless, Dr. Kinman
testified that the numerous impediments within the Sanitary Sewer pipe triggered a hydraulic
jump that caused a 100% blockage or choking of the pipe. He testified the backup rose not only
into the Gertz basement lateral but the first floor laterals as well.
Dr. Kinman failed to present any analysis in his expert opinions about the first floor
laterals in the Gertz building. He testified he does not know which particular impediments or
incidents within the pipe actually caused the hydraulic jump. He does not explain his conclusion
as to why any particular hydraulic jump would cause a backup into some but not all of the Gertz
laterals. More importantly, Dr. Kinman’s hydraulic jump theory ignores the impact of a
hydraulic jump on the Cohen lateral. The Cohen lateral is located between the first and second
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Gertz laterals connected to the first floor. The first floor level of the Gertz building sits at an
elevation of at least 630.33 feet. By Dr. Kinman’s own calculations, the Cohen first floor
elevation sits at 626.26 feet, four feet below the elevation of the Gertz first floor laterals. Based
on Dr. Kinman’s theory that the pressurized sewer water from a hydraulic jump seeks the point
of least resistance, it would be expected that the pressurized flow would release from the Cohen
lateral connections, which sit at a lower elevation, before the Gertz first floor lateral connections.
However, the evidence shows that the Cohen property did not experience a Sanitary Sewer
backup of the fixtures in the Cohen building’s first floor. Dr. Kinman’s opinion on causation via
a hydraulic jump theory lacks support in the evidence and a substantial explanation as to why
hydraulic jump occurred in the Gertz laterals but not the Cohen lateral.
Dr. Barton’s expert reports and testimony were more cogent and convincing than Dr.
Kinman’s. In addition, the Court finds Dr. Barton to be better qualified than Dr. Kinman for the
opinions on sewer pipe capacity and flow factors in this case. Dr. Barton has a superior record of
expertise, project experience, and publications directly related to the causation theory advanced
by Claimants. (Compare MSD Ex. 16 with Gertz Exs. 7 and 8). As noted in multiple instances
above, Dr. Kinman often overstated the significance of the materials upon which he relied and
his explanations tended to be disjointed. Dr. Kinman’s expert reports and testimony fall short of
making a persuasive case for the cause of the Gertz Property damage.
In addition, Dr. Kinman did not consider the relevant Consent Decree factors that govern
the resolution of this SBU claim. In forming his opinions, Dr. Kinman did not request
information on surrounding properties other than the information that he obtained on the Cohen
property; he did not consider whether surrounding properties experienced sewer backups on
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August 28, 2016; he did not investigate or determine the condition of the private building sewer
or laterals for the Gertz Property, which are the responsibility of the building owner and not
MSD; he did not know whether the Gertz Property had ever experienced or reported a previous
Sanitary Sewer backup; and he did not know what volume, if any, of sanitary flow and debris
were in that Sanitary Sewer on August 28, 2016. (Id. at PAGEID 49376-82). In all, Dr. Kinman
did not present a persuasive case that the backup was caused by a surcharge of the public
Sanitary Sewer. For these reasons, Dr. Kinman’s conclusions are given little weight.
The Court has also considered the testimony from eyewitnesses who observed what they
believed to be the presence of feces, toilet paper, and waste matter on the floors of the Property
on or about August 28, 2016. 19 The Court notes that MSD’s Executive Report did not include
any reported information about toilet paper and fecal residue, and both MSD experts, Mr.
Pittinger and Dr. Barton, testified they had been given no reports of toilet paper and therefore did
not consider it in formulating their opinions. The presence of such waste matter does not,
however, necessarily establish there was a surcharge of the public Sanitary Sewer. Where a
private building lateral becomes overloaded, the lateral can back up and any waste matter already
present in the lateral necessarily backs up with the water surfacing through basement drains or
fixtures. Therefore, while the presence of such waste matter may be indicative of a public
Sanitary Sewer backup, it may also be indicative of a private building sewer backup.
An illegal storm water connection to the sanitary building lateral can be a source of
overloading in a private building sewer. MSD’s dye tests of the outside drains, roof stacks,

One such witness was a ServPro employee who testified he observed feces and toilet paper on the Property floor.
As the Court advised the parties at the hearing, this Court’s authority to award damages is limited by the terms of the
Consent Decree, and MSD cannot be bound by any statements or opinions of its cleaning contractors. (Doc. 1962 at
PAGEID 48734).

19

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downspouts, and external trench drains at the Gertz Property showed proper connections to the
Storm Sewer. MSD dye tested some of the internal floor drains, with one such test being
inconclusive. MSD dye tested a first floor internal floor drain on February 14, 2017, but the dye
from this test did not show up in either the Sanitary or Storm Sewer. (MSD Ex. 7 at Doc. 1866-7
at PAGEID 44645). MSD dye tested two first floor internal floor drains on February 24, 2017,
and both showed in the sanitary sewer. (MSD Ex. 8 at Doc. 1866-8 at PAGEID 44647). A first
floor toilet dye tested that same day showed in the sanitary sewer. (Gertz Ex. 28). Mr. Gertz
testified he dye tested the window well drain which showed in the Storm Sewer. (Doc. 1964 at
PAGEID 48947). However, there is no evidence how or to what sewer (building, sanitary, or
storm) the outside door well drain connected. (Doc. 1965 at PAGEID 49114-15). In addition,
there is no evidence that the internal building plumbing and laterals were videoed to determine
the condition of the building laterals or whether there were any improper connections. Property
owners, and not MSD, are responsible for the maintenance and cleaning of building lateral sewer
lines, which are owned by the property owner. (Consent Decree, Ex. 8 at 1; Doc. 580, Ex. C,
Section 2008, MSD Rules and Regulations) (“The owner of the premises served by a sewer shall
be responsible for the maintenance and cleaning of the building sewer from the building to the
point of connection with the public local sewer.”). See also Order Re: Request for Review by
Wardell Hill, Doc. 685 at 13, n.8 (March 27, 2014). If there were improper lateral connections
or blockages within the Gertz building laterals, the responsibility for remediating those problems
lies with the Claimants and not MSD. In addition, there was testimony that garbage, mud, debris
and paper products routinely enter Storm Sewer inlets and would have entered the Property
through the various floor drains given the overloading of the Norwood Storm Sewer. This
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provides another likely explanation for the observations. Because there are no other signs that
the main public Sanitary Sewer line surcharged on August 28, 2016, the presence of feces or
debris on the Gertz Property floors is not dispositive.
Finally, if the public Sanitary Sewer surcharged, it would be expected that all three first
floor laterals would have backed up, but that did not occur in this case. In their rebuttal brief,
Claimants allege that MSD misconstrues Mr. Gertz’s testimony to limit the area of SBU to the
circled blue line depicted in Gertz Ex. G-2A when in fact it encompassed the far West bathroom
serviced by the last upstream building lateral. Claimants argue Mr. Gertz drew a blue line to
indicate only his observations of the first floor sewer backup on the day he discovered it, and it
was not intended to encompass other areas of the building, including the far West first floor
bathroom. (Doc. 2023 at PAGEID 52092, citing Doc. 1963 at PAGEID 48834, Page 121, L. 2225 and Page 122, Page 123 and Page 124).
This is not what the relevant testimony demonstrates:
Q. Now, you came down and saw this the day after the incident. Can you show us
where the water was and where it didn’t go? And what I’d ask you to do is take a
colored pen over there, oh, I’d say blue, and draw a line around the farthest limit
where the water went.
A. (Witness complied). In proximity, I think you’d be very safe to use that line as
a limit from my –
Q. Go back over on the right side.
A. As far as from my observation.
(Doc. 1963 at PAGEID 48834) (emphasis added). Mr. Gertz was specifically asked to depict the
“farthest limit,” and the far West bathroom was not included.
Claimants contend Mr. Gertz did not depict the far West bathroom because “the Gertz’s
were not really inhabiting that area.” (Doc. 1965 at PAGEID 49121). They allege that “Mr.
Gertz did not initially discover the sewer backup in the back bathroom until sometime later,
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which he explained to the Court in his testimony, located at Doc. 1964 at PAGEID #49005, Page
122, L. 21-25 and Page 123, L. 1-6.” (Doc. 2023 at PAGEID 52092-93). This is not what the
testimony states:
Mr. Gertz: There are three taps that service 2700 Highland Avenue. On the main
level, there are three taps, on the main level, and one on the lower level.
Q. All right.
A. Those three taps are here, here, here. (Indicating.)
Q. You can put that exhibit down now.
A. Okay.
Q. And you can have a seat.
THE COURT: Can I just ask a clarifying question? On the blue highlighted portion,
I thought you said earlier that that was the portion where within that circle was areas
that had water?
THE WITNESS: Yes, Judge.
THE COURT: But not outside that area on the main level?
THE WITNESS: That’s correct. The morning that I got there and after some time,
I identified that area to have been impacted or had water.
THE COURT: Thank you.
(Doc. 1964 at PAGEID 49004-05). Contrary to Claimants’ argument, this testimony does not
indicate Mr. Gertz identified the far West bathroom as having had experienced a backup.
Viewed in context, the phrase “that area” is in reference to the subject of the Court’s question:
“the blue highlighted portion.”
The additional testimony Claimants cited to indicate that Mr. Gertz later realized the
West bathroom was impacted does not support Claimants’ argument. (Doc. 2023 at PAGEID
52093, citing Doc. 1965 at PAGEID 49121, Page 103, L. 10-24). This testimony indicates the
involvement of the trench drain in the room adjacent to the tool storage room.
Claimants argue the testimony of ServPro’s representative supports a finding that the far
West bathroom, and by extension the farthest upstream first floor lateral, was affected by
Sanitary Sewer backup. Claimants argue in their rebuttal brief: “ServPro’s representative, Mr.
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Gilbert, specifically identified this area on the far West side of the building as where he first
observed wastewater flowing from and across the first floor into the basement on the East side of
the Gertz building.” (Doc. 2023 at PAGEID 52152, citing Doc. 1965 at PAGEID 49144, Page
195, L. 3-8). This is not accurate. The Court has reviewed this testimony, and Mr. Gilbert did
not specify the direction he proceeded through the building, nor did he specifically identify the
far West bathroom as showing signs of wastewater backup.
In determining causation in SBU cases, the Court examines many factors, including the
amount of precipitation, property SBU history, condition of the sewer system in the
neighborhood, results of a visual inspection of the neighborhood to look for signs of overland
flooding, neighborhood SBU history, capacity of nearby public sewer lines, and topography.
(Doc. 131, Consent Decree, Ex. 8 at 2). Those and other factors do not establish, by a
preponderance of the evidence, that the Sanitary Sewer surcharged and caused the Gertz
Property’s damage. There was no additional sanitary flow from upstream of the Gertz Property;
the Property had not previously reported an SBU and there are no known capacity problems with
that Sanitary Sewer line; there were no reports of SBU by property owners on the same Sanitary
Sewer line segment downstream and at lower elevations, which would be expected if an SBU
occurred at the Gertz Property; the Norwood Storm Sewer surcharged to at least street level and
discharged storm water into eight of the nine Gertz basement laterals that were tied to the Storm
Sewer; there were no signs of surcharge in the relevant Sanitary Sewer manholes; and the
evidence on Sanitary Sewer capacity and flow from Dr. Barton was more persuasive than from
Dr. Kinman. In this case, the preponderance of the evidence does not establish that inadequate
capacity in MSD’s Sanitary Sewer caused the flooding to the Gertz Property. Rather, a backup
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of the Norwood Storm Sewer system more likely caused the flooding.
The Court is sympathetic to the losses suffered by the Claimants in this case.
Nevertheless, the Court must decide this case by analyzing the evidence and weighing the
persuasiveness and supportability of the evidence. The Court is bound by the terms of the
Consent Decree, which places the burden of proof on the Claimants to show the cause of the
damage to their property was a capacity-related public Sanitary Sewer problem. The
undersigned is responsible for ensuring that any costs for damages to an individual’s private
property that must be paid by MSD (and ultimately the rate payers of Hamilton County) under
the Consent Decree are the result of the backup of wastewater into the property due to inadequate
capacity in MSD’s Sanitary Sewer system. In the absence of evidence establishing Claimants’
property damage was more likely caused by a surcharge in the public Sanitary Sewer line and not
by the surcharge of the Norwood Storm Sewer or some other cause, the Court is constrained to
uphold MSD’s decision in this case. Therefore, the Court denies Claimants’ appeal in this case.
IT IS SO ORDERED.

Karen L. Litkovitz, Magistrate Judge
United States District Court

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