I could offer the reason this second evening edition of the SLABBED Daily is that I was waiting on Judge Senter’s bit of housekeeping news:
TEXT ONLY ORDER finding as moot Defendant Exponent, Inc.’s Motion to Dismiss; finding as moot Defendant Jade Engineering’s Motion to Dismiss for Lack of Jurisdiction; and finding as moot Defendant Jade Engineering’s Motion to Dismiss. These motions are rendered moot in light of the Court’s order dismissing these two defendants, among others. NO FURTHER WRITTEN ORDER SHALL ISSUE.
The truth, I’m sorry to say, is that I just got so caught up in MRGO that I forgot! I don’t expect the qui tam lawyers to forget about the two events noticed yesterday – their upcoming deposition of Lecky King on May 5 and Jack Ford’s the following day.
State Farm has so far been unable to confirm to its satisfaction whether exhibit 7 to the April 30 and May 1, 2007 Cori and Kerri Rigsby deposition transcripts in McIntosh is still subject to restrictions. For that reason, out of abundance of caution, Exhibit 7 to those depositions is not being produced at this time.
Otherwise, the included a list of 16 items produced and delivered to the attorneys for the Rigsby sisters and this snark:
Much to my amazement, the USA actually included a copy of the fully executed Joint Defense and Cost Share Agreement with the Motion filed by USA attorney Robin Smith in apparent violation of the Agreement – go figure!
SLABBED reported the USA motion here and the Plaintiff’s response in opposition here .
One of us would read the Agreement aloud if wordpress offered that feature. Instead,below you will find selected, relevant sections from and a link to the fully executed Agreement (h/t Defendant USA) and some of Judge Duval’s “make-my-day” comments from the official transcript (h/t Robinson Plaintiffs).
This Joint Defense and Cost Share Agreement (“Agreement”) is entered into by and among the United States of America (United States), Board of Commissioners of the Orleans Parish Levee District, Sewerage and Water Board of New Orleans, Board of Commissioners of the East Jefferson Levee District, State of Louisiana (Department of Transportation and Development), The Parish of Jefferson, and Board of Commissioners for the. Port of New Orleans acting through and upon the advice of their respective counsel…
The Agreement applies to Re Katrina Canal Breeches Consolidated Litigation (Levee), which is pending, in the United States District Court for the Eastern District of Louisiana as Civil Action No. 05-4182 (the “Federal Litigation”), and various actions pending in the courts of the State of Louisiana seeking similar relief (the “State Litigation”) (collectively referred to as “the Litigation”).
Recognizing the need to balance the benefits of consolidating the litigation with the potential for conflicting interests, provisions were added that required all parties to waiver rights to seek disqualification, including, but not limited to Sections 11, 13, and 20.
Richard Dietz, a former claims supervisor with Farmer’s Insurance Group, has taken to the airwaves to confess the sins of his former employer, co-workers and himself. His video is being broadcast in the state of Washington in support of a consumer protection referendum which would provide financial penalties for insurers that wrongly delay or deny claims.
In the 30-second video, Dietz states:
“I used to be an Insurance Claims Supervisor. When I started out, it was human beings making decisions. Now insurance companies use computer programs to automatically cut 20 percent from what they know they owe on a claim.
I was forced to use it. You even got bonuses for denying claims.
In Washington state, it’s not illegal for insurance companies to delay or deny legitimate claims. They want you to give up. And they’re getting away with it.”
Every observer of Louisiana politics is aware of Mark Twain’s adage: “No man’s life, liberty or property is safe while the Legislature is in session.” Actually, it was New York Judge Gideon Tucker who first made the perceptive statement in 1866. Will Rogers reflected that: “We have come to feel the same when the legislature is in session as we do when the baby gets hold of a hammer. It’s just a question of how much damage he can do with it before you take it away from him.” You get the idea. And yes, the storm clouds are gathering, for the state capitol in Baton Rouge is alive and buzzing.
There is strong justification for more concerns this year than the first session of this new administration a year ago. Over half the members were new last year, and the overriding issue was a pay raise for lawmakers. But last year’s gathering lasted only 30 days. This time, with a year of experience to learn the tricks of the trade, these parliamentarians have 60 days to vent their sway over our lives. So what’s on the plate to force us to keep our guard up?
Without warning, at approximately 5:15 p.m. Tuesday, April 28, 2009, and during the Government’s cross examination of a witness that Mr. Andry had just finished examining on direct, Mr. Andry and the Court were advised by Robin Smith of the filing of a Motion to Disqualify Mr. Andry and Ms. Sherman from this matter.
Robin Smith represented to the Court that the USA had not yet “ascertained” the facts, but was filing a motion in the event of a “potential” conflict of interest…Mr. Smith, as an officer of this Court, specifically declared,”We became aware of this conflict or potential conflict late last week and we sought guidance from our professional advisory office. We just received their report today advising us to go ahead and file this. It’s an issue for the Court to look into. It’s not something for us to determine. We can’t do it. We don’t know the facts. Opposition to USA’s Motion to Show Cause Why Plaintiffs’ Attorneys…Should not be Disqualified(emphasis in document)
Yesterday must have been Mr. Smith’s day to specifically declare. According to the attached Affidavit of attorney Elwood C. Stevens, Jr., his brief conversation with USA attorney Smith ended with Smith specifically declaring:
…he was tired of plaintiffs’ counsel offering him ethics advice and he declined to withdraw the motion.
Clearly, even Nationwide cannot present any authority to dispute Plaintiffs’ arguments that no corroborating medical testimony is required for Mrs. Politz to testify as to how Nationwide’s conduct made her feel.
Nationwide instead seeks to enflame the Court’s sensibilities by continually mentioning what it refers to as Plaintiff’s “discovery abuses,” referring it its previous Motion to Strike, which the Court has already ruled upon. Primarily, Nationwide contends that Mrs. Politz was somehow being sneaky or acting in bad faith by not divulging to Nationwide that she had been prescribed anti-depressants until her first deposition on November 3, 2008.
Mrs. Politz is an honest and pleasant, sixty-seven year old woman who lost everything she owned, had her claim basically denied in full for two years, had to come out of retirement to go back to work to make ends meet,subsequently lost her husband, and underwent open heart surgery in early 2007. Needless to say, she has been through a lot, and can be absentminded at times. That does not tarnish the fact that she is an honest and intelligent woman…
The only thing that Mrs. Politz failed to divulge until her first deposition in November 2008 is the fact that she had been prescribed anti-depressants. Mrs. Politz did not divulge even to her attorneys that she was taking anti-depressants. Can Nationwide attempt to use that information to impeach her credibility at trial? Certainly it can. However, Mrs. Politz should not be subject to the severe sanctions sought by Nationwide simply because she forgot something in her interrogatory responses and remembered it during her deposition. Nationwide has fully explored the issues at this point, and it has now had this information in hand for almost six months.
As I recall, the question asked Mrs. Politz was had she ever sought treatment for her mental health. If correct, that explains her response. The anti-depressants were not prescribed by a mental health professional.
Speaking of pellucid. The MRGO trial is starting to remind me of driving my kids to summer camp – He touched me… Did not… Yes, you did – you put your foot on my side… Did not – if I’d touched you, it would have felt like this… Waaaaaaa – he hit me.
Yesterday’s report introduced the Plaintiff’s motion to compel discovery of the calculations used by the USA’s witness Bruce Ebersol.
During the day, the USA filed it’s Did so…You did not…formally known as a Notice of Document Production
The United States provided those calculations to the Plaintiffs by electronic mail on April 27, 2009. Those materials are now being produced with Bates-stamped numbers…(emphasis added)
In that context a motion to strike seems literal and today Plaintiffs filed a… stop!…look what he’s done now…Motion to Strike Lay Witness Pete Luisa from Defendant’s Witness List
…In MRGO, the parties were obligated to update their witness list on the 20th day of each month “to facilitate regular and ongoing preparation for common liability issues trials.” As such, the defendant United States has had over twenty-five (25) opportunities since the March 1, 2007…to identify Mr. Luisa prior to the filing of its final witness list…The first time the defendant identified Mr. Luisa was on the March 27, 2009 United States’s Final Witness List of Witnesses…
The subject matter for which Mr. Luisa was identified to address was “how the Corps determines its annual funding recommendations for projects such as the LPVHPP”…without any opportunity to depose the witness, Plaintiffs are suspect of the relevance of Mr. Luisa’s testimony to the matters at issue in this trial… Continue reading “MRGO Update – April 29”
To give our readers a look back at Kuehn and how State Farm made up the rules as they went along in how they adjusted claims after Katrina lets visit with Anita Lee and a story she wrote back in May of 2006 on the Kuehns battle to get State Farm to honor their own policy provisions. An interesting sideline is the fact the Farm used George Dale and his screwed up mediation program as the reason to deny a valid policy provision. The article still exists on the internet courtesy of CorpWatch:
State Farm Fire and Casualty Co. refuses to engage in the appraisal process to resolve Hurricane Katrina claims, even though its own policy mandates appraisal on demand when the amount of an insured loss is in dispute.
Instead, records show, the company is urging policyholders to settle disputes through a mediation program sponsored by the Mississippi Department of Insurance and funded by insurers.
Two attorneys, one who was personally denied appraisal and another whose clients have been turned down, think they know why.
“State Farm is just plundering and victimizing its policyholders in the mediation process,” said Ocean Springs attorney Earl Denham. “That’s why they’re doing this. If you get in the appraisal process, they’re not going to be able to do that because somebody else makes the decision.”
Denham represents Henry and June Kuehn of Ocean Springs, who asked State Farm about appraisal after the company offered them only $10,765.48, minus depreciation and deductible, to cover the wind damage to their waterfront home.
At the close of testimony on this day, trial counsel met for a status conference concerning Plaintiffs’ Memorandum… After a full discussion concerning the parties’ positions concerning these issues and the Government’s averring that it was not its intention to contend that the LPV structures were improperly designed or did not perform as expected, Plaintiffs’ counsel asked that the memorandum be withdrawn.
At the heart of the current dispute is Mr. Ebersole’s failure to produce a series of calculations upon which he based his opinions. At deposition, it was pointed out to Mr. Ebersole that there was substantial concern about the validity of his calculations in “modeling” his storm surge hydrographs. Continue reading “SLABBED Daily – April 28 (a MRGO update)”