“Influence and Persuasion” applied – Gagne responds to State Farm’s motion to exclude out-of-state conduct

OMG, now I do see it!  Influence and Persuasion – Gagne’s ten-page Response in Opposition to State Farm’s Motion to Exclude Evidence of Our-of-State Conduct

  • Compassion is the ability to understand and relate an issue from the viewpoint of the person you are trying to persuade.

Plaintiff respectfully suggests that motion practice and the pretrial process were designed to, and will, narrow the issues and potential evidence that may be admissible… The dispositive motion phase of this proceeding will further narrow the issues in that claims may be confessed or dismissed by the Court. Such typical procedural events could make this type of evidence irrelevant to the remaining proceedings and render the Campbell analysis unnecessary and moot.

Furthermore, the settlement conference scheduled for January 21, 2009 could make such detailed and voluminous analysis unnecessary.

  • Authenticity is the ability to be “real” with another human. You have to be honest with the facts and how the law applies to those facts.

State Farm’s motion makes several arguments about the dangers of out of state conduct being used in a case in chief. Plaintiff concedes that other than in rare instances such as where like conduct would impeach sworn testimony, it is generally inadmissible.

Plaintiff understands and respects that State Farm’s conduct in handling the Gagné claim is the inquiry during the contractual phase of his trial. However, should a Mississippi plaintiff prevail on his contract claim and convince the Court that the harm that befell him required a punitive damages claim, such evidence may or may not be admissible in the punitive phase of his trial. It will depend upon the harm that was established at trial and its nexus to any proposed evidence. This request by State Farm is not ripe for adjudication at this time.

  • Genuine Caring is the ability to seek a fair resolution.

Plaintiff has not collected and sought evidence of State Farm’s other acts of improper claims handling for purposes of proving State Farm misbehaved before, therefore they misbehaved in the handling of the Gagné matter. Plaintiff agrees that such a tactic would be improper.

Fortunately in Mississippi, the contract portion of Plaintiff’s claim and the punitive phase are generally bifurcated. This allows a clear and useful delineation between what type of issues may be raised in the Plaintiff’s contract claim and what issues may be raised in the punitive damages phase.

  • Passion is loving what you do.  If you want to influence another human and evoke a human response, most people need to see a passion for what you are doing and saying.

Though State Farm’s motion is vague, overbroad and premature, Plaintiff does possess evidence in this matter that Plaintiff may attempt to introduce at trial during the punitive phase to display State Farm’s historical pattern of denying claims in their entirety during catastrophes inconsistent with their duties to certain policy holders under the contract of insurance. This tendency to paint with too broad a brush then cling to, rather than correct claims errors in catastrophes, may well lead to some of the evidence discussed in State Farm’s motion being relevant in this litigation.

The methods State Farm uses to justify, rather than correct claims handling errors in catastrophe situations may well be probative of important issues to the finder of fact. These methods may include the pre-textual use of engineering firms to give the appearance of objective adjustment of certain claims (and plausible deniability). These tactics and the misleading of certain policy holders as to the actual bases for the denial of their claim – at a point when the claimant is entitled to good faith and fair dealing – go to the very heart of  Robert Gagné’s claim.

In the instant case, Plaintiff has alleged that State Farm, following  Hurricane Katrina, denied the Gagné claim as part of a legal strategy rather than as part of a good faith adjustment of his claim, that State Farm directed, acquiesced in and/or coerced Exponent, Inc. to support them in achieving this result, and that State Farm mislead the Plaintiff about the actual bases for denial of his claim in hopes of gaining an advantage in the negotiations and/or litigation of the claim.

Plaintiff has also alleged that State Farm used such pattern and practice, with the help of Exponent, to deny the Gagné claim here. As such, any evidence that would have “any tendency” to corroborate Plaintiff’s assertions would be relevant to this matter, at least in the limited context contemplated by Campbell.

Plaintiff is entitled to use all of the evidence which the Court deems admissible under Rules of Evidence 401, 403 and 406. Plaintiff suggests that to rule now on State Farm’s motion would either paint with too broad a brush or require hours and hours of individualized analysis of discovery documents that is simply unnecessary at this stage of the proceeding.

Plaintiff possesses evidence that State Farm routinely reacts to large scale catastrophes where State Farm faces potentially high liabilities, such as Hurricane Katrina and the 1999 Oklahoma tornadoes, by engaging in a pattern and practice of denying certain claims as part of the litigation strategy while attempting to cover-up any evidence of such motivations with pretextual investigations.

This type of activity, if proven, would be the exact type of circumstances that would warrant a detailed and thorough analysis of the reprehensibility of State Farm’s conduct towards Robert Gagné. If, at the appropriate time, Plaintiff seeks to introduce such evidence and Plaintiff can convince the Court that State Farm habitually engages in such pattern and practice, State Farm’s out of state conduct may very well be relevant and admissible under Mississippi and Federal Rule of Evidence 406.

This conduct, if shown to be State Farm’s routine practice in response to catastrophes after which State Farm policyholders file a large amount of claims, might therefore be probative and not unduly prejudicial, but rather go to the very allegations of Plaintiff’s Complaint and Amended Complaint. (emphasis added)

In State Farm’s position, I’d be persuaded to simply ask, “How much?” – and Exponent, likewise, as there is little difference in Gangne’s Response to their similar motion

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