It’s a Slabbed Family Feud Part 2: Rigsbys file for Discovery – McIntosh included

Before you read more, take a moment and think about all of the claims made about the Rigsby sisters relative to their qui tam case.  When you’re done, take another moment to reflect on the impact these claims have had on Katrina litigation to date.

Did you consider that, as a result of claims made about the sisters, their qui tam counsel was disqualified; the Rigsbys themselves have been disqualified as witnesses in policy holder cases; and the evidence they collected to support their qui tam case has been declared inadmissible in the policyholder cases.

Do you realize that the record supporting these claims and producing this impact was provided by State Farm?

The word sham gets tossed about a lot; but, never applied correctly in my opinion – primarily for the reason the Rigsbys attorneys filed their Motion requesting discovery before responding to the final dispositive motion listed in Judge Senter’s scheduling order, the Motion for Summary Judgment filed by State Farm.

For the reasons set forth in Relators’ Memorandum of Law, State Farm’s Motion raises several issues of disputed fact that should not be resolved until after discovery. Moreover, the Motion incorporates discovery taken by State Farm in other cases, but Relators have never had a chance to serve discovery requests or take depositions. Accordingly, Relators should not be required to respond to State Farm until after a suitable discovery period. (emphasis mine)

In the accompanying Memorandum, the Rigsbys attorneys made two arguments:

The relators are entitled to discovery to counter state farm’s prior discovery.

The relators are entitled to discovery into state farm’s specific acts of fraud, including the Mcintosh claim

The first argument is so fundamental to the concept of justice that no one should ever have to make such a request of any court.

Something I ran across in the early days of Slabbed – too early to realize how significant the information would become – briefly discussed discovery via a related case.  Based on that, my understanding is that there is no related intent to give one party an advantage over another.  Instead, it is an efficiency but not a blank check.

IOW, discovery was limited to information to the specific case; however, if applicable to a related case, it would be admissible in the related case as well as in the specific case. I would think there would be an associated requirement to notice counsel in the related case.  Yet, I have been calling attention to the “invitation list” and “attendance roster” for depositions of the Rigsby sisters since I first noticed the absence of their qui tam attorneys last April and, given the lack of comment, it must not matter.

The second argument is “hot” and so long overdue that it deserves a round of applause – make that a standing O for the reference to McIntosh.

State Farm also argues that it never committed fraud on the government and therefore Relators’ acts were not “in furtherance of” a False Claims Act claim.  That contention is the central factual dispute in this case, and State Farm’s conclusory statements cannot erase the factual issues raised by the Rigsbys’ evidentiary disclosure and complaint, including the evidence of fraud regarding the McIntosh claim.

As Relators noted in their Oppositions to State Farm’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and State Farm’s Motion to Dismiss Under Federal Rules of Civil Procedure 12(b)(6) and 9(b), the McIntosh claim raises a host of disputed facts. For example, State Farm has now attempted to raise the recent dismissal of the McIntoshes’ extracontractual claims as evidence that it did not commit fraud when it rejected engineering reports and mischaracterized wind damage as flood damage.

But as the McIntoshes’ attorney apparently stated for a news article, the release of extracontractual claims was in fact part of the settlement of the McIntosh case. (Counsel for the McIntoshes “said a motion the McIntoshes filed last week asking a federal judge to dismiss their claim for punitive damages was part of the settlement agreement.”)

Moreover, in a press release, State Farm stated that “a compromise settlement has been reached over insured damages to the McIntosh home for $250,000,”² but that statement does not address whether the McIntoshes’ extracontractual damages claim settled for a separate and higher amount.

This clearly raises issues of credibility regarding the conclusory statements made by the McIntosh plaintiffs in connection with the dismissal (i.e., was there any basis for the statements or were they merely bought and paid for by State Farm).