Fatigue. I am wore out. I am battle scarred.
How many Katrina survivors share the sentiments of outgoing Moss Point Mayor Xavier Bishop? That I don’t know but after reading NPR: Hurrican Fatigue Plagues Mississippi Mayors over at the Y’all Politics blog and following the link to NPR, I’ve given the question some thought.
It’s hard to hold public attention on any issue and even harder because so much about Katrina sounds like a broken record. Insurance claims handling is certainly one example – but, who would have ever thought four years after the storm there would be unresolved claims for Katrina damage.
Obviously, I was naive to think all these claims would be resolved long before now; but, I’m reviewing cases with trial dates set well into 2010 and even more still in the early stages of litigation with no date set at all.
Not only are they all starting to sound alike, most of them are! When I tire of reading slightly different versions of the same complaint, I think about the policyholder plaintiffs and how tired they must be of the struggle to resolve a dispute that should never have happen.
Politz v Nationwide is one of those “should never happened” disputes but it did happen and today her attorney filed a Motion for Review and Objection to the U.S. Magistrate Judge’s Order.
I noted two points of particular interest. The first was that Mrs. Politz be allowed to make the necessary arrangements if the Court insists on the exam; and, the second, this citation:
Nationwide has failed to make the requisite “good cause” showing required by Rule 35. Rule 35 states that a district judge “may” order a mental examination only upon a showing of “good cause.” Fed. Rule Civ. Pro. 35(a)(2)(A). Nationwide has pointed to no new information which would make the requisite showing for good cause as to why it only now, eight months after the expiration of the original expert deadline and almost two years into this litigation, seeks a mental examination of Mrs. Politz. Plaintiff’s Complaint made clear that she sought damages for mental anguish and emotional distress.
One factor reviewed by courts in making a “good cause” determination is “whether the plaintiff plans to prove [her] claim through the testimony of [her own] expert witnesses.” Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 196, 200 (N.D. Tex. 1995). Clearly, Plaintiff has no expert witness designated in this area. The purpose of ordering a Rule 35 examination is to “preserve the equal footing of the parties” on the issue of evaluation of the plaintiff’s mental state. Id. (citation omitted). Ordering it in this case would actually do the opposite, as long as Plaintiff has no expert of her own on the issue.
Like Mayor Bishop, I am wore out – wore out waiting on justice but no less willing to keep the faith and carry on.