SLABBED Daily – April 29 (Politz, O’Keefe, Rigsby, Minor)

Jumping right in to this sea of documents with the Reply to Nationwide’s Response filed by counsel for Mrs. Politz.

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.

Next up, O’Keefe v State Farm and the Plaintiffs’ Motion to Quash Subpoena Duces Tecum.  The O’Keefes claim State Farm has once again “gone fishing” – this time for information on their insurance policy with USF&G.

The subject Subpoena should be quashed because it seeks information not reasonably calculated to lead to the discovery of admissible evidence in this litigation, and, more specifically, seeks information which exceeds the scope of F.R.C.P. 26. Specifically, [83-2] “Exhibit A” to the Subpoena indicates Defendant’s efforts to acquire:

Any and all documents you have in your possession or under your control relating to Daniel B. O’Keefe and/or Celeste A. Foster O’Keefe, The Dancel Group, Inc., Dancel Visual Communications, Inc., or Dancel Productions, Inc. and/or relating to Policy No. BK02129597.

This request includes, but is not limited to, the original or duplicate originals of any and all documents in your possession or under your control relating to the above referenced parties, including though not limited to any and all insurance policies, applications, underwriting materials, claim files, agent files, information concerning any and all payments made, estimates, photographs, receipts, invoices, or any other information maintained in any form.

This request further includes, but is not limited to, the originals or duplicate originals of any and all information maintained in any form of any and all recorded statements, recorded statement tapes, recorded statement summaries, inspection reports, handwritten notations, tax returns, profit and loss statements, account records and documentation, inventory lists, and all other tangible items in your possession or under your control which relate to any and all insurance coverage, property coverage or otherwise, provided to Daniel B. O’Keefe and/or Celeste A. Foster O’Keefe and/or the Dancel Group, Inc., Dancel Visual Communications, or Dancel Productions, Inc.

Plaintiffs object to this request because it is overly broad, in time and scope…Plaintiffs also object to this request because it seeks information that would be protected by the collateral source doctrine. None of the information sought in this Subpoena is reasonably calculated to lead to the discovery of admissible evidence to prove or disprove any claim or defense in this litigation.

Plaintiffs respectfully request the Court enter an Order quashing the subject Subpoena Duces Tecum to United States Fidelity and Guaranty Company; or in the alternative for a Protective Order directing that United States Fidelity and Guaranty Company shall not produce documents or information specified above in response to the Subpoena; or in the alternative for a Protective Order Ordering State Farm not to utilize but to turn over all originals and copies of responsive documents to Counsel for the Plaintiffs in the event USF&G produces documents in response to the subpoena prior to the date the Court rules on this Motion.

I frankly don’t understand why State Farm would be allowed to go “deep sea fishing” and obtain information on a policy issued by another company when the matter at hand is the coverage provided under the State Farm policy the O’Keefe’s purchased.

The Rigsby qui tam update is short and sweet.  Judge Senter has granted the Rigsbys’ motion to dismiss Count V against the Renfroes and their ompany (retaliation against whistleblower) and gave the government 15 days to object to the dismissal of the remaining Counts I-IV, stating if there were no objections filed by then, he would also grant that motion.

Last, but by no means least, it the latest from the Fifth Circuit on Paul Minor’s appeal- a letter from the Clerk of the Court on behalf of the Panel of Judges deciding the Appeal:

The panel requests that the parties provide supplemental briefing on the following issues related to counts 11, 12, 13 and 14 alleging violations of 18 U.S.C. § 666. The court notes that section 666 provides that an agent of a state or local government or agency receiving federal funds as specified in section 666 – here “the Administrative Office of the Courts” of Mississippi – commits an offense if he “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more . . . .”

1. What evidence shows that the matter or matters respecting which Judge Whitfield or Judge Teel intended to be influenced or rewarded, were a matter or matters in connection with any business or transaction of the Administrative Office of the Courts of Mississippi? Similarly, what evidence shows that anything of value which Minor gave with intent to influence or reward Judge Whitfield or Judge Teel was in respect to any action taken or to be taken in connection with any business or transaction of the Administrative Office of the Courts of Mississippi?

2. Describe the nexus that the “in connection with” clause requires between the relevant governmental agency – here the Administrative Office of the Courts of Mississippi – and the particular matter respecting which the “agent” defendant (here Judge Whitfield or Judge Teel) is intended to be influenced or rewarded.

3. What is the proof of such nexus with respect to the convictions under counts 11, 12, 13 and 14?

4. As to each appellant was a lack of such nexus adequately raised below and on appeal? If not adequately so raised, what authority would allow the court to consider the nexus in the present appeal?

5. If the court determines one or more of counts 11, 12, 13 and 14 should be reversed, what effect, if any, would that have on the proper action to be taken on any of the other counts of conviction, and what effect, if any, would that have with respect to whether there should be resentencing on any of the other counts of conviction even if the convictions on those other counts were not to be reversed?

Good questions and we eagerly await the Court’s response.  All parties have until the 18th of May to submit a 15-page brief in response.

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