At times I’ve seen a notice on a docket reminding both parties that each is to submit a settlement proposal to the court prior to the meeting. All of this led me to believe these conferences are very proper, formal meetings and nothing I’ve read has suggested more than one is scheduled by the court – or rather nothing I’ve read until last week:
What you see on the Politz docket for 7/28/09 is a TEXT ONLY ORDER issued by Judge Senter setting the Expedited Briefing Schedule Respectfully Requested by Counsel for Mrs. Politz with the Motion for Review of and Objection to the United States Magistrate Judge’s Order denying Mrs. Politz’s motion to designate her own mental health expert.
Counsel for Mrs. Politz also requested a hearing on the Motion; BUT, what you see in the three entries above Judge Senter’s Order is a Notice of Hearing Settlement Conference – and who’s idea was that? Judge Walker’s? Is this cartoon from Nowdy’s newest favorite, LawComix, a more accurate view of a settlement conference than the formal meeting I had in mind?
Surely, not! However, I’m not certain the Court is reading what Counsel for Mrs. Politz submits or, if reading, doing so with an open mind:
Allowing Nationwide’s expert Dr. Webb to provide a medical diagnosis, while at the same time prohibiting Mrs. Politz from offering an expert to provide a medical diagnosis, squarely places Mrs. Politz in a severely prejudicial position from that of Nationwide. Nationwide claims that Mrs. Politz always had the information about her mental condition, from a medical standpoint, while it did not.
This is not true, as Mrs. Politz is not a medical doctor and had never previously been diagnosed by a mental health specialist, specifically with regard to her feelings of depression, stress and anxiety in the wake of Hurricane Katrina and Nationwide’s denial of her claim. Further, as previously pointed out to the Court, Mrs. Politz has gone through an awful lot since this litigation began, including several moves, the death of her husband, and her own open heart surgery. She additionally comes from a generation which stigmatizes mental health issues, making her doubly wary of seeking any such diagnoses…
The purpose of Rule 35 is to put the defense on equal footing with the Plaintiff. See Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 196, 200 (N.D. Tex. 1999). The denial of Plaintiff’s Motion for Leave to Designate Dr. Ginzburg as an expert witness does exactly the opposite.
A footnote in the motion notes Counsel’s effort to communicate with Counsel for Nationwide and related email correspondence, Exhibits B and C, documents Plaintiff’s Counsel provided a copy of the results of Mrs. Politz’s exam to Nationwide despite the Company’s expressed lack of interest:
…knowing Nationwide’s penchant for attempting to manufacture prejudice to put Plaintiff in a bad light. See Exhibit “D.” In fact, that appears to be Nationwide’s primary strategy at this point in the litigation.
From the outside looking in, “Nationwide’s primary strategy” has also included an attempt to put Plaintiff’s Counsel in a bad light – one that suggests he has not communicated appropriately and/or effectively while the truth is much to the contrary.
Mr. Carter communicates well – in Spanish, English, German and Japanese – and his representation of Mrs. Politz has been, in a word, gallant.
Consequently, it is no surprise that Mrs. Politz mental health exam was conducted by a doctor whose expertise is beyond dispute.
Harold M. Ginzburg, M.D., J.D., M.P.H…is currently in private practice…primarily …evaluating and treating patients who have developed psychiatric or neuropsychiatric problems as a result of physical injury, chronic illness, or traumatic incidents.
He was an active duty commissioned officer in the United States Navy and United States Public Health Service for more than two decades…His last career Federal government assignment was as the Senior Medical Consultant, Office of Emergency Preparedness, Office of the Assistant Secretary for Health, the United States Public Health Service. He was tasked with developing emergency medical and mental health response programs for the Disaster Medical Assistance Teams (DMATs) sponsored by the National Disaster Medical System (NDMS).
Dr. Ginzburg received his baccalaureate and medical school education at Boston University. He did his fellowship in Psychiatry and received a Master’s degree in Public Health at the Johns Hopkins School of Hygiene and Public Health, Baltimore, Maryland. He obtained his law degree from Catholic University, Washington, D.C, and is currently a member of the Maryland Bar and licensed to practice medicine in a number of states.
He is a Diplomate of the American Board of Psychiatry and Neurology, and is a Distinguished Life Fellow of the American Psychiatric Association, a Fellow of the American College of Preventive Medicine and was a fellow of the Infectious Disease Society of America. He is currently a Clinical Professor, Department of Psychiatry and Neurology, Tulane University Medical Center, and a Clinical Professor, Department of Psychiatry, Louisiana State University Health Sciences Centel’ School of Medicine in New Orleans. He is also an Adjunct Professor of Psychiatry, Uniformed Services University of the Health Sciences, School of Medicine, Bethesda, Maryland.
I don’t know if Dr. Ginzberg was on the Student Activities Board while he was a medical student – only that I read his 31-page curriculum vita, attached to the Politz motion as Exhibit A, and saw no mention.
Could that be the reason Judge Walker turned the requested Motion hearing into a Settlement Conference? You just never know. In Katrina litigation, the unusual is the usual and most anything can happen.