Sop’s post on Andrew McDonald’s video of Katrina in action brought to mind the video game State Farm played at the recent Rigsby qui tam hearing.
Prior to the hearing, both parties filed a Notice listing potential exhibits. You may recall State Farm filed objections to every item on the list submitted by the Rigsby sisters. In turn, the Rigsbys’ counsel did not object to a single item listed in State Farm’s Notice or that some items were available only on a buy-your-own basis.
D-28 “Kevin Abraham” Video (copyrighted, Rigsbys must therefore purchase their own copy)
It could be the Rigsbys didn’t object because they were stunned. I certainly was – particularly after realizing it had no relevance to the McIntosh claim or any of the others shown on the map of State Farm’s video game.
Judge Senter probably was more shocked than stunned by State Farm’s intent to play the video game in the Rigsby qui tam case given the related orders he has issued such as this one dated June 27, 2007 in Eleutis v State Farm
Between the filing of the current motion on June 6, 2007, and the final pretrial conference held on June 18, Defendant responded that it filed (in the same time frame) supplemental expert reports which now include reference to a PowerPoint presentation to be used as demonstrative evidence… Defendant maintains that such evidence will be used to “demonstrate the analysis and conclusions of the reports of [its experts] . . . .” Defendant also believes that this “supplement” should provide the Plaintiff ample opportunity in advance of trial to offer “any argument in response to the information contained in the PowerPoint.” Trial will be held on July 16…
Defendant will not be allowed to introduce “demonstrative evidence” under the guise of calling it a “supplement,” especially when it appears that the sole purpose for offering the “supplement” is not to fulfill a duty under the Federal or Local rules, but to avoid the Court’s prior ruling on a similar issue. Furthermore, placing the burden on Plaintiff at this late date to counter this material is unduly prejudicial.
Accordingly, IT IS ORDERED: Plaintiff’s motion in limine is GRANTED consistent with the above comments.
A month almost to the day before Judge Senter issued the Order in Eleutis, the 24th of May, he had entered a similar Order in McCoy v State Farm, thwarting the Company’s attempt to play its video game with the case.
The Court and counsel viewed portions of lengthy videos in Defendant’s possession which depict scenes from Hurricane Katrina. Defense counsel was given ten (10) days to provide the Court with an edited version of the video to be introduced at trial; the Court has not received this material. No explanation was given at the pretrial conference as to where or when the videos were taken, and it is the Court’s determination that, even if such evidence is potentially relevant, it should be excluded because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, [and] by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
There are also serious authentication problems with the evidence that Defendant has not addressed. Portions of expert reports shown to the jury shall be exact replicas of what is contained in the report. This is no different from referring to parts of a claims file maintained by Defendant. These documents speak for themselves and may be explored by counsel, but not in summary fashion.
Accordingly, IT IS ORDERED: Plaintiff’s Motions in limine are GRANTED consistent with the above comments. Demonstrative evidence during expert testimony shall be limited to specific excerpts from reports offered and admitted on Defendant’s behalf. Videos in Defendant’s possession…shall be excluded.
Neither Eleutis or McCoy are shown on the video game map; s0, we turn to Wingate v State Farm for an example of just how irrelevant State Farm’s video game can be.
Plaintiffs would assert that the video allegedly taken by Mr. Abraham is highly prejudicial and has absolutely no probative value in the instant cause of action. The video was allegedly taken by Mr. Abraham in a house located at the corner of Keller Avenue and Comfort Place
The subject insured property belonging to the Plaintiffs is located in Jordan River Estates in Bay St. Louis, Mississippi, which is approximately thirty-five miles from the extremely limited area that can be seen in the video allegedly taken by Mr. Abraham.
The Defendant’s attempt to introduce a video filmed approximately thirty-five miles from the Plaintiffs’ insured property is somewhat ironic, in light of the Defendant’s objection to providing information from properties surrounding the subject insured property. In any event, the video is completely irrelevant to the instant case and the deposition of Mr. Abraham will not provide information that is relevant or reasonably calculated to lead to admissible evidence…
noticed Kevin Abraham’s availability for deposition in 16 Katrina cases…[N]one of the information in the video, Mr. Abraham’s affidavit, Mr. Abraham’s deposition and/or testimony should be admissible at trial. The Abraham video should not be allowed into evidence as it does not depict events specific to those that occurred at the Plaintiffs’ residence during Hurricane Katrina; therefore neither the video, the affidavit or any testimony provided by Mr. Abraham are relevant to the issues in this cause of action. Neither the video nor Mr. Abraham’s affidavit constitute facts of consequence relevant to the issues in this cause of action. See F.R.E. 401.
The related Plaintiff’s Motion in limine Regarding Defendant’s Demonstrative Evidence and Documents Not Previously Produced in Hosch v State Farm followed in July 2007
On July 5, 2007 at approximately 8:30 p.m., the Defendant e-mailed Plaintiffs the Defendant’s portion of the Pretrial Order, and referenced its intentions to introduce the following documents:
D-10 Kevin Abraham video.
D-11 Battle at the Beachfront video.
D-12 Aerial photographs of the plaintiffs’ property and surrounding area.
None of these documents have been produced in discovery, despite outstanding requests for evidence and documents by the Plaintiffs. It is simply impossible for Plaintiffs to conduct discovery or to properly prepare a defense or evidence in opposition to the noted evidence and documents when such evidence has not been timely produced to the Plaintiffs.
Due to the under-whelming success of its video game strategy in April, May, June, and July, 2007, State Farm went all out in August and noticed Kevin Abraham’s availability for deposition in 16 Katrina cases, inclusive of Winters v State Farm shown on the bottom right corner of the video game map.
In an effort to establish the extent of geographic relevance of these cases to the location featured in Abraham’s video, I pulled identified the location of the insured property in four of the 16 cases – one in Waveland, two in Ocean Springs and one in Biloxi. Although almost a mile west of Abraham’s location, the Biloxi property is more geographically relevant than any of the cases shown on the map or listed in the Notice.
While more frequently mentioned, the Kevin Abraham video was not the only media challeged by plaintiffs over the years that appeared on State Farm’s list for the Rigsby qui tam hearing. Other media include, but are not limited to, the list that follows this reminder – when short on substance, go for show!:
D-27 “Tommy Luke” Video;
D-28 “Kevin Abraham” Video (copyrighted, Rigsbys must therefore purchase their own copy);
D-29 “Battle at the Beachfront” Video (copyrighted, Rigsbys must therefore purchase their own copy);
D-18 Powerpoint slides “Water is More Powerful than Wind” (SJ001383 – SJ001387);
D-31 Composite Photograph Exhibit With Orientation Key Page Created by John B. Kelly and Produced by FAEC (GBEO-Forensic-14 – BEO-Forensic-45)
D-23 All charts, diagrams and other media contained in or appended to the  April 20, 2009 Expert Report of Kurtis R. Gurley, Ph.D (previously provided);
D-24 All charts, diagrams and other media contained in or appended to the  April 20, 2009 Expert Report of Robert G. Dean, Sc.D. (previously provided);
D-25 All charts, diagrams and other media contained in or appended to the  April 20, 2009 Expert Report of Mark Watson, P.E., SECB (previously provided);
D-26 All charts, diagrams and other media contained in or appended to the  April 20, 2009 Expert Report of Gary Dailey (previously provided);
What a different place the Coast would be if paying claims had the priority of playing video games.