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”