BREAKING NEWS – Bossier moves for Judgment as a Matter of Law or New Trial

Pursuant to Rule 50, Fed. R. Civ. P., Plaintiff moves for judgment as a matter of law on all issues concerning contract damages on the grounds that the jury did not have a legally sufficient evidentiary basis to find in favor of Defendant….

The law is clear that when considering a Rule 50 motion, “the Court must review all of the evidence from the record, draw all reasonable inferences in favor of the non-moving party, and may not make credibility determinations or weigh the evidence.” Poliner v. Texas Health Systems, 537 F.3d 368, 376 (5th Cir. 2008).  While this standard is a heavy one, in the case sub judice the evidence presented at trial compelled a finding in favor of the Plaintiff. The jury’s contrary verdict should not be allowed to stand.

This Honorable Court denied Plaintiff’s Motion for Judgment as a Matter of Law after Defendant’s presentation of the evidence, but noted during the jury instruction conference that the motion probably should have been granted.

On blog and off, readers have consistently offered positive comments about Bossier’s counsel Judy Guice calling her an ethical, smart lawyer that fights for her clients. At least one has mentioned that putting clients first, not money, is what all lawyers are supposed to do.

Nothing is more telling of Guice’s client-first commitment to the practice of law than the Motion for Judgment As A Matter of Law or in the Alternative for a New Trial and the Memorandum of Support – both were filed Friday in Bossier v State Farm and followed by a relatedOrder from Judge Senter.

Guice’s Memorandum in Support of the Motion for Judgment as a Matter of Law put a compelling argument on the table:

Defendant bore the burden of proving that all of Plaintiff’s dwelling loss beyond that which had previously been paid resulted from storm surge flooding. It failed to carry this burden. Indeed, Defendant failed to offer a qualified expert witness on the issue of causation. Under Mississippi law, only a licensed professional engineer can give opinions concerning causation, yet Defendant failed to present any. See, Miss. Code Ann. § 73-13-1, et .seq.

The evidence was uncontradicted that high winds totally destroyed Plaintiff’s 1,000 square foot dwelling extension prior to the arrival of storm surge flooding on the property. This dwelling extension was located in close proximity to Plaintiff’s dwelling. The side of Plaintiff’s dwelling closest to the dwelling extension was completely missing. Professional engineer Ted Biddy testified that he personally observed that the east wall closest to the dwelling extension was blown in by winds.

Moreover, Defendant admitted that Plaintiff’s entire roof and parts of the exterior required replacement. Yet Defendant paid nothing for interior damage that would have occurred and offered no proof that the sole cause of such damage was excluded from storm surge. Defendant offered only photographs and unsubstantiated adjuster conclusions concerning the cause of loss. The photographs, however,demonstrated substantial upper level damage to the home, including soffit and fascia damage and roof damage that was well above the waterline.

State Farm representative Tip Pupua admitted that even afer adjusting the loss amount for paying only for a 25 year roof, State Farm erred again and paid only for a 30 year roof. Pupua admitted State Farm owed Plaintiff additional monies for a 40 year roof yet the jury ignored this uncontradicted testimony.

Proof also established that Plaintiff’s south side of the dwelling was completely encased in windows. The entire wall of windows was missing following the storm. Defense witnesses readily conceded that they did not and could not determine that none of the windows had been broken by wind.

The text that follows, no doubt, accounts for State Farm’s relative silence:

This Honorable Court denied Plaintiff’s Motion for Judgment as a Matter of Law after Defendant’s presentation of the evidence, but noted during the jury instruction conference that the motion probably should have been granted. While the Court permitted the case to go to the jury, it may, and should now, order judgment as a matter of law.

The Fifth Circuit Court of Appeals decision in Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618 (5th Cir. 2008), supports grant of the Rule 50 motion in this case. Specifically, the Fifth Circuit’s reversal of this Honorable Court’s JMOL in Broussard was based solely on the testimony of State Farm’s expert witnesses who “testified that the damage to the actual structure of the Broussards’ home came from the storm surge.” Id. at 625. No such evidence was presented here. JMOL is appropriate in this case.

After Broussard, Judge Senter deciding to send the case to the jury was an understandable decision – particularly when the evidence was so clearly in Bossier’s favor as further demonstrated in the discussion of the alternative, a new trial:

In the alternative, the Court should grant a new trial as to all issues under Rule 59. Again, the standard is a familiar one. Specifically, a new trial may be granted when the verdict is “against the great [weight], not merely the preponderance, of the evidence.” Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989).

Of course, “the evidence must be viewed in a light most favorable to the jury’s verdict, and the verdict must be affirmed unless the evidence points so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary [conclusion].’” Id. at 987 (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)).

Here, the evidence was overwhelmingly in favor of Plaintiff. Plaintiff presented eyewitness testimony of Joseph Ziz who observed the substantial dwelling extension being destroyed by wind prior to the arrival of storm surge,flooding. Moreover, Plaintiff presented multiple claims file information of neighboring properties where engineers hired by State Farm found evidence of heavy wind damage in the area.

Plaintiff also presented the only professional engineer to testify at trial. This uncontradicted testimony was that the damage to Plaintiff’s home resulted from the winds of Hurricane Katrina.

In contrast, Defendant presented only photographs and conclusory lay opinion testimony from poorly trained and unqualified adjusters. The only expert witness presented by Defendant confirmed that the winds of Hurricane Katrina would have impacted Plaintiff’s property prior to excluded flood waters. State Farm wholly and utterly failed to meet its burden of proving that all or any of the unpaid damage to Plaintiff’s home was caused by storm surge.

Stated differently, Defendant failed to prove that none of the damage to Plaintiff’s home was caused by wind prior to the arrival of storm surge flooding. The evidence was so strongly and overwhelmingly in favor of Plaintiff that a new trial should and must be granted.

In addition, there exists in this case evidence of confusion on the part of the jury. During the jury’s deliberation on the punitive damages claim, a note was sent to the Court asking why Plaintiff did not have flood insurance. This was obviously an issue that was on the jury’s mind, although it had no relevance as to any issue in this case, whether punitive or compensatory damages.

Further confusion of the jury was evident when the jury was polled and juror number 1 vacillated as to whether the verdict read was in fact her verdict.

As compelling as the Memorandum is up to this point, the seal-the-deal text follows:

Plaintiff also submits that a new trial is required because of the erroneous form of the jury verdict during the compensatory damages phase of the trial.

While the Court’s instructions to the jury properly placed the burden of proving an exclusion to coverage on State Farm and advised the jury that Plaintiff had met his burden of proving that the dwelling damage was caused by an accidental direct physical loss and the personal property by windstorm, the jury verdict form was in conflict with said instructions and required the jury to find that the cause of loss was covered. In this regard, the jury verdict provided as follows:

The verdict form relating to the dwelling required the jury to find the damage was caused by wind, in effect negating the Court’s previous instructions that Plaintiff had met his burden of proof. Similarly, as to contents, while the Court had previously advised the jury that the contents were covered as caused by windstorm, the jury verdict form required the jury to find the loss was caused by windstorm. Thus, the jury verdict form, in conjunction with the instructions, produced a hopeless conflict concerning the burden of proof.

The last item entered on the docket Friday was an Order from Judge Senter noting:

My ruling, consistent with this opinion, is already a matter of record. The ruling I made from the bench has been formalized in opinion this 20th day of November, 2009.

The ruling was Senter’s decision on the testimony of Forrest Masters, retained by State Farm to testify as an expert in the field of engineering:

The Court has before it the plaintiff’s ore tenus motion to exclude the testimony of Forrest James Masters (Masters), one of State Farm Fire and Casualty Company’s (State Farm) expert witnesses. State Farm has retained Masters to testify as an expert in the field of engineering.

Masters is extensively educated, holding a Ph.D. in civil engineering. He meets the requirements of Rule 702 of the Federal Rules of Evidence in that he is qualified by knowledge, skill, experience, training, or education to testify in the form of an opinion on engineering issues.

Plaintiff’s objection to the admissibility of Masters’s testimony is not in the nature of a Daubert challenge nor is it based upon any alleged inadequacy in Masters’s engineering education, training, or expertise. If the plaintiff’s objection were based on the holding in Daubert, or on Masters’s qualifications as an expert under Rule 702, I would overrule the objection and allow Masters to testify.

The plaintiff’s challenge is not, however, grounded in Daubert or in the question of Masters’s education, training, or expertise. Plaintiff challenges Masters’ competency under Mississippi law, specifically §73-13-1, et seq. and the regulations enacted under these statutes. These state laws require that a professional engineer be certified in order to practice engineering in Mississippi, and these same statutes define the practice of engineering to include giving testimony as an expert in the field of engineering.

I am duty bound to follow Mississippi law in determining the competency of all witnesses in this diversity action. Federal Rules of Evidence 601 provides:

Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise
provided in these rules. However, in civil actions and proceedings,
with respect to an element of a claim or defense as to which State
law supplies the rule of decision, the competency of a witness
shall be determined in accordance with State law.

This is a diversity action. Therefore, both Rule 601 and Rule 703 of the Federal Rules of Evidence apply to Masters’s testimony, and the requirements of both rules must be met if Masters is to testify as an expert in this action. Not only must Masters be qualified as an expert under Rule 703, he must also be competent to testify as an expert in engineering under Mississippi law.

To put it in its simplest terms, the plaintiff asserts that Masters is statutorily disqualified from testifying in this case because he lacks the requisite certification as a professional engineer under Mississippi law. Plaintiff correctly points out that testifying as an expert in the field of engineering is within the definition of “practicing engineering” and therefore requires a Mississippi certificate of registration.

Masters is not licensed or certified as an engineer in Mississippi, nor is he licensed or certified as a practicing engineer in any other state. Masters is qualified as an engineer intern in Florida, and he earns his living primarily as an engineering teacher. The question before the Court is whether his lack of certification under Mississippi law as a professional engineer disqualifies him from testifying in this action under 73-13-1 et seq. and Rule 601 of the Federal Rules of Evidence.

Based on my review of the statutes and regulations on which the plaintiff relies, I agree with the plaintiff’s contention that giving expert testimony as an engineer is within the statutory definition of practicing engineering. Miss. Code Ann. §73-13-3. If the statute and regulations are to be honored, Masters must be disqualified as an expert in this case on the grounds that allowing his testimony in the absence of certification or a Regulation 4.05 certificate is inconsistent with Mississippi substantive law made binding on this Court in all diversity cases under Rule 601 of the Federal Rules of Evidence.

It would be my preference to allow Masters to testify were that option open under Mississippi law. The competing interest in this matter is the very important right of a party to present reliable evidence in support of its position. Defendant asserts that the statute and regulations impose an undue or unreasonable restriction on the Court’s control of evidence under the Federal Rules of Evidence.

This is not the first time this issue has arisen in the context of Hurricane Katrina litigation. In Aiken v. Rimkus, Civil Action No. 1:06cv741 LTS-RHW (Aiken), I excluded the substantive testimony of an expert engineer for his failure to meet the requirements imposed by §73-13-1 et seq. In Aiken, I attempted to ameliorate the effect of the statute by permitting the engineer in question to testify to establish the standard of care in his field, finding that this did not infringe the statutory restrictions. It proved impossible, however, to completely separate testimony concerning the standard of care from the forensic question whether that standard of care had been met. The importance of the Aiken case, from the Court’s point of view, is that it serves to give fair notice to the litigants and attorneys in Katrina cases that the statute and regulations at issue will be honored…

Judge Senter then recounts the cases he reviewed to guide his opinion before moving to a related review of the way other circuits have ruled on the important point of law the plaintiff has raised:

The matter before me is not an issue of admissibility concerning documentary evidence: it is an issue of the competency of an expert witness in this diversity case, an issue governed by Rule 601. This is a diversity action in which the substantive law of Mississippi applies…

There exists a split in authorities among the circuits on the question whether Rule 702 displaces Rule 601 in determining the competency of expert witnesses. The Sixth, Ninth, and Eleventh Circuits apply Rule 601. Legg v. Chopra, 286 F.3d 286, 289-92 (6 Cir.2002) (applying Tennessee th law); Higgenbottom v. Noreen, 586 F.2d 719, 720, 722 (9th Cir.1978) (applying Oregon law); McDowell v. Brown, 392 F.3d 1283, 1287, 1294-95 (11th Cir.2004) (applying Georgia law). The First, Fourth, and D.C.Circuits appear to rely on Rule 702 alone. Garbincius v. Boston Edison Co., 621 F.2d 1171, 1173 (1st Cir.1980); Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469,475-76 (4th Cir.2005); Ealy v. Richardson-Merrell, Inc. 897 F.2d 1159, 1163 (D.C.Cir.1990).

I find that the requirements of Rule 702 and Rule 601 are cumulative. An expert must meet both the competency requirements of state law and the standard of qualification under Rule 702 and Daubert. I have identified no Fifth Circuit case that addresses this specific issue. Among the existing authorities, I find the cases that follow both the competency requirements of Rule 601 and the qualification requirements of Rule 702 persuasive.

Accordingly, I find Rule 601 applicable. Following the dictate of Rule 601, I find that Mississippi law governs the competency of Masters to testify as an expert in the field of engineering. I further find that Masters’ lack of the certification required by Miss. Code Ann. §73-13-1 et seq. and the regulations thereunder disqualify him from giving expert testimony concerning engineering issues in this case.

In light of Judge Senter’s reference to Aiken as giving fair notice to the litigants and attorneys in Katrina cases that the statute and regulations at issue will be honored, State Farm does not appear to have a leg to stand on. In fact, the Company has been requesting additional time to identify experts in a number of cases.

13 thoughts on “BREAKING NEWS – Bossier moves for Judgment as a Matter of Law or New Trial”

  1. Wow, so much to comment on, but I’ll tackle a few….

    First, the EASY, OBVIOUS ONE out of the Judge’s mouth:

    “…This Honorable Court denied Plaintiff

  2. sorry, I accidentally, hit the “send” button b4 saying everything I wanted to say and proofreading what I wrote, so here’s where I left off b4 I hit the “send” button:

    “…hence, said depos.

  3. The Broussard decision from the 5th Circuit all but assures this will not be granted and if granted, will be reversed.

    There has to be something done by the Ms. legislature, i.e. an adverse presumption of some sort when an insurance company does a back ended loss adjustment.

    This case proves that you cannot trust the jury to see through the obvious non-sense and render based on the facts.

  4. Another thing— I am not 100% convinced you need expert testimony. The jury is allowed to draw inferences from the facts and if the undisputed facts are that there was wind hitting the home of a certain speed at a certain time followed by storm surge of a certain height, why can’t the jury simply conclude the storm surge destroyed the home and not the wind?

    I would never go into court on this issue without an expert (not an engineer by the way because an engineer in my opinion can sometimes be too limited in their area of expertise), but I think its important when you are attacking the jury’s findings of fact. Essentially you have to show that there were almost no facts elicited at trial that supported the jury’s conclusion that storm surge destroyed the home. Once again, I emphasize this is why the risk is sometimes too great— your clients could potentially miss their only opportunity to recover money needed to re-build.

    Can the Bossiers demonstrate that the jury basically had no basis for reaching its conclusion, i.e. that State Farm’s evidence was so weak that a reasonable person could not conclude storm surge destroyed the home or a large percentage of the home? I doubt it.

  5. Sorry to say, NRB, but you got two strikes, IMO. Not that legislative action would not be helpful; but, pull up Senter’s Order and read the case law he cited.

    As to the jury. First of all, if you go without a Mississippi licensed engineer, you have no one qualified to testify on causation. Again, the best reference is Senter’s Order.

    If what you’re saying is that you are willing to advise your client to settle for less than a jury would award them, mediation – not litigation – is the appropriate process. There’s a recent related Allstate opinion I need to post, just short of time.

    The biggest problem with the Bossier jury was exactly what the documentation shows, the jury form! No doubt, a result of the few cases here that ever make it to trial. Other problems require more time than I have at the moment but I’ll catch back up with you later and provide more detail…and a couple of other briefs filed in Bossier that I couldn’t fit into the post.

  6. In my humble opinion, “something” happened during this trial that SLABBED is not reporting. All of the readers of SLABBED had been “primed” for a plaintiff’s verdict, and we were sorely disappointed. Jury trials are lost because one side or the other has “bad” facts (SLABBED told us that Bossier had “good” facts), or because the Judge “prejudices” the jury against one side (SLABBED constantly “sings” Judge Senter’s praises), or because one side or the other loses the trust of the jury (ie. the jury believes they are LYING) as a result of “something” done or said by that side’s witnesses and/or lawyer. SLABBED told us that Bossier’s “expert” didn’t do so well on the witness stand. Just what the heck did THAT mean? What the heck is the point of bringing a case to trial if your expert isn’t going to do well on the witness stand? SLABBED also has told us that the jury was “turned off” by the fact that Bossier didn’t have flood insurance. That FACT had NOTHING to do with State Farm, and it is very likely that the jury saw through Bossier’s attempt to collect from State Farm what he would’ve collected from the flood insurer, if he had made the conscious decision to purchase flood insurance, but didn’t (consciously). THAT is the PRECISE reason that i turned down EVERY potential client who contacted me to pursue their homeowner’s claim, but who didn’t have flood insurance. Were the jurors asked during voir dire whether they did or didn’t have flood insurance, and whether they were “satisfied” with the insurance adjustment of their KATRINA claims? Bossier’s chances of prevailing in post-trial motions are “slim and none”.

  7. The “something” that happened, Ashton, is you just pissed in your whiskey. Let’s just take one of your “questions” – one that I’m not planning to include in the post I’m writing on the knowledge gap in Katrina litigation – and run with it.

    Starting with your Monday morning quarterbacking of voir dire, the answer is “hell if I know” what the jurors were asked. However, whether anyone on the jury did or did not have flood insurance was not relevant to this case.

    Neither was it relevant that Bossier had none. The issue at trial was whether State Farm could prove rising flood water caused Bossier’s property loss. State Farm did not provide proof of loss – it couldn’t and, therefore, the company was required to meet it’s contractual obligation to pay policy limits. It didn’t.

    “With all due respect”, I believe you’ve missed “the reason for the season” – the fraud carried out when flood insurance is used to pay for a loss caused by wind.

    There’s no question that Katrina turned the Coast into a giant bathtub. Nor is there any question that our collective future went down the drain when State Farm and other insurers pulled the plug and failed to meet their contractual obligation to policyholders.

    Suggesting Bossier missed the boat when he didn’t have flood coverage is tantamount to saying the solution to the coastal insurance problem is for policyholders to become co-conspirators in the fraudulent scheme to bill the flood insurance program for privately covered wind loss.

    “In my humble opinion” that’s no solution.

  8. The jury almost certainly were people who do not live on waterfront property and did not have total losses and assume that total losses of waterfront properties were largely due to storm surge. State Farm did not have to prove it for them to believe it to be true. They also have not spent the past four years dealing with State Farm’s bullshit, as Senter has. If State Farm had tried to say the damage was 100 percent flooding, as they argued in Broussard, State Farm would have lost. But this jury was also not going to say the loss was 100 percent due to wind. Just my guess at the jury dynamics.

  9. Sadly I think the juries will now see the problems as a whole. What will all this cost? Not relavent. A lot of what happen will fade with time. I mean limitations. Due process, rarely used anymore had its need. I wonder how the class claims would play out before jury?

  10. Nowdy: I’m just trying to understand the jury’s verdict adverse to the Bossiers, which I didn’t expect. ALL jurors bring built-in “human” prejudices to Court with them. It was SOP who said:”They (the jury) blamed the Bossiers for not having flood insurance.”, in a Comment on SLABBED on 11/13/09. It would “help” us all understand if you could post the jury’s Answers to the Jury Interrogatories (also called a “Special Verdict Form” by some, unless that verdict was what is called a “General Verdict”. Also, there was a statistical analysis at Yale some years ago that concluded that @ 80% of jurors make up their minds about a case during Opening Statement(s). One day I’d like to read the Opening Statements and Closing Arguments in Bossier.

  11. The jury verdict was sealed last time I checked – believe I mentioned that in post. As to other documents, I’ve not seen them or transcript of the trial. On the other hand, I think Guice provided a lot of detail in the motion she filed and the full document is linked in the post.

  12. O.K., Nowdy. I don’t know how I “missed” Ms. Guice’s post-trial memorandum, which addresses some of my questions about the evidence and the jury verdict. Bottom line: By not awarding any money for “the damage to plaintiff’s property caused by wind”, the jury, in effect, concluded that the damage to plaintiff’s property was caused by storm surge, which was uninsured. We must conclude that the jury believed that State Farm carried its burden of proof as to the cause of the damage to the plaintiff’s property, and that the plaintiff (and his lawyers) failed to persuade the jury that State Farm’s evidence was wrong or unreliable or untrustworthy. This really “ain’t rocket science”. The plaintiff just “lost”, because State Farm put on a better case, and the jury believed State Farm’s witnesses. That’s how I see it. “Sometimes wrong, but never in doubt.” AROD.

  13. You tell ’em Nowdy! :) Do you know if the Bossier motion is set for hrg yet? Never mind, I’m sure you’ll let us know in due time.

    TX

    SHIRLEY HEFLIN

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