just in case hell really does freeze over – a mention of USA v Minor, Van Heerden v LSU and a strange Louisiana ruling in Katrina litigation

Some thought hell would have to freeze over for the Who Dat’s to win a Super Bowl – but they did and, lo and behold, snow may cover what looked like the gates to hell after Katrina.

Just in case hell really does freeze over.  USA v Minor co-defendant,  John Whitfield filed a Motion for Release Pending Resentencing and Appeal the very day SLABBED reported the Government’s opposition to the requested release of Minor co-defendant former Coast judge Wes Teel.

Both co-defendants are requesting release on the same general basis – the 5th Circuit’s recent decision reversing part of their bribery convictions and the pending USSC decision on the constitutionality of the honest services statute, the likely-to-be-tossed basis for the remaining portions of their sentences.

The news of the day, so to speak, is Paul Minor is the only defendant that has not filed a motion for release pending appeal with Judge Wingate.  In light of these apparently very significant developments, why not?  Minor has hasn’t hesitated to file for a lawful get out of jail free card in the past.  If his case is as strong as he keeps saying it is, why does he appear fearful now?

Could Minor’s behavior be another indication that hell may indeed freeze over?

Over at the Ladder, Editilla’s update on Ivor van Heerden’s wrongful dismissal lawsuit included the story appearing in the NYT.  A recently posted update to the update calls van Heerden’s case a whistleblower lawsuit!

The whistleblower suit alleges that Dr. van Heerden, an LSU Associate Professor and leader of the state team that conducted a comprehensive investigation into the devastation of Hurricane Katrina, was subjected to a multi-year campaign of retaliatory harassment after he made critical comments concerning the failure of the U.S. Army Corps of Engineers to safeguard the City of New Orleans…

University officials attempted to silence Dr. van Heerden, the suit alleges, because they believed that his investigation and comments jeopardized LSU’s relationship with the federal government and the Army Corps of Engineers. According to the lawsuit, LSU officials called Dr. van Heerden into a meeting in late 2005 and “admonished him for his public criticisms of the Corps” and said he had “jeopardized LSU’s prospects for federal funding.”

Attorney David Marshall of the law firm Katz, Marshall & Banks, is representing Dr. van Heerden in this action. “Speaking the truth should not cost you your job or allow others to smear your reputation in order to protect their own interests,” said Marshall, “Dr. van Heerden seeks justice not solely for himself, but for the principles of free speech, academic freedom and the right of scientists and university faculty to speak freely without fear of retaliation.”

In the better-late-than-never category of the Ladder’s updated update, the Times Picayune now has the story.  Dr. van Heerden’s lawsuit was filed in Louisiana’s 19th Judicial District Court Baton Rouge Parish) h/t NYT – and bleg for Louisiana lawyers to keep SLABBED informed on developments in the case.  

Dr. van Heerden draws the Advance to Go card – and hope hell doesn’t have to freeze over for him to walk away with much more than $200 from the LSU Community Chest!

Last, the really strange Louisiana ruling in Katrina litigation is this Order issued by none other than Magistrate Sally Shushan Bello v Teachers Insurance Company (filed as Horace Mann).

In response to Bello’s first set of interrogatories, Teachers reported that Rimkus Engineering inspected the property. Rec. doc. 72 (Exhibit HM-2 at 5). There is no reference to Rimkus Engineering in the complaint. Bello’s second set of interrogatories and supplemental request for production seek information concerning Rimkus Engineering, including: (a) the gross amount paid by Teachers to Rimkus Engineering for 2005 through 2009; (b) the amount paid by Teachers to Rimkus for its involvement in the property located at 3117 State Street Drive; and (c) documents relating to such payments.

The parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. Fed R. Civ. P. 26 (b)(1). Bello has not demonstrated that the information sought regarding payments to Rimkus Engineering is relevant. The pleadings do not demonstrate that the information is relevant to the parties’ claims and defenses.

Bello filed an Objection with a supporting Memorandum that counters the Magistrate’s claim the needed relevance  had not been demonstrated.

…the relevancy of the requested financial information and documents was inherently obvious given the fact that financial gain is many times the most important and most critical way of exposing an expert’s bias. Counsel for Mr. Bello has not ever taken or defended an expert deposition in which one of the first questions is not “how much money do you make from insurance companies or plaintiffs’ attorneys?” As addressed in more detail shortly, numerous courts, including this court, have routinely ordered that proposed experts and the insurance companies that hire them, produce financial information and documents in order to allow homeowner plaintiffs the opportunity to show the expert’s bias. In fact, Magistrate Paul Cleary of the Northern District of Oklahoma previously denied defendant’s Motion to Quash and ordered Pacesetter, the independent adjusting firm based in Tulsa, Oklahoma that defendant retained to initially inspect Mr. Bello’s home, to produce all financial information for the years 2005-2008.1 Magistrate Cleary noted during oral argument that the information was clearly relevant as the information and documents went to the independent adjusters’ bias.

Nevertheless, despite defendant’s failure to timely object to the discovery requests and the obvious, inherent relevancy of the requested information, the magistrate denied Mr. Bello’s Motion to Compel stating “Mr. Bello has not demonstrated that the information sought regarding the payments to Rimkus Engineering is relevant.” (Rec. doc. 73). Accordingly, Mr. Bello now timely objects to the magistrate’s ruling and as explained below, the magistrate’s ruling is contrary to well established decisions of not only this court, Louisiana state courts, but the United States Fifth Circuit Court of Appeal and thus, Mr. Bello’s objection should be sustained and the Motion to Compel granted.

The financial information and documents showing how much money defendant paid Rimkus from 2005-2009 is undisputedly relevant as such information and documents goes directly to credibility of Rimkus’ engineers who inspected Mr. Bello’s home at defendant’s request. More particularly, Federal Rule of Evidence 607 states that “the credibility of a witness may be attacked by any party, including the party calling the witness.” Of course, one way to attack a witness’ credibility is show the witness’ bias towards the party he or she is testifying on behalf of. In this regard, nothing speaks to a witness’ bias, especially a proposed expert witness’ bias, like the sum of money a particular entity such as an insurance company has paid the witness in exchange for his or her opinions.

Not surprisingly, the United States Fifth Circuit Court of Appeal has held that the fees earned by experts in prior cases were relevant to the expert’s credibility and bias. Collins v. Wayne Corp., 621 F.2d 777, 783 (5th Cir.1980); see also Butler v. Rigsby, 1998 WL 164587 (E.D. La.1998) (Vance, J. presiding) (affirming Magistrate Chasez’s Order instructing plaintiff’s expert to produce financial information, including income tax returns as because “the amount of income derived from services related to testifying as an expert witness is relevant to show bias or financial interest”); Chaupette v. Northland Ins. Co., 2009 WL 4060452 (E.D. La.2009) (Wilkinson, Mag. Presiding) (denying in part defendant’s Motion to Quash and ordering defendant’s medical expert to produce financial information and documents concerning defendant, defendant’s counsel and the expert) accord King v. Verdini, No. 00-12522-RWZ, 2007 WL 3332816, at *5 (D.Mass. Nov. 8, 2007); Hawkins v. South Plains Int’l Trucks, Inc., 139 F.R.D. 679, 682 (D.Colo.1991); First State Bank v. Deere & Co., No. 86-2308-S, 1991 WL 46375, at *5 (D.Kan. Mar. 15, 1991).

Judge Shushan’s thinking in this case lacks the depth of her work we’ve seen in Branch.  Hopefully, this is just a temporary lapse but she took a chance when she parked less than her best thinking and there’s a fine.

Shoot Sop an email from “Contacts”  if you see any other indications the Who Dat’ win started hell freezing over.

2 thoughts on “just in case hell really does freeze over – a mention of USA v Minor, Van Heerden v LSU and a strange Louisiana ruling in Katrina litigation”

  1. Dayum! Y’all are pumping out so much we just had to give you a general link for Hump Day. I can’t even get a bead on a particular title –because they all that good! HA!

    Thanks for adding so much to this Van Heerden story. It is very ongoing. The bad T-P article had nearly 75 comments last I checked, (of course a few of them are Editilla’s 😉 and a hell of a lot of Turfers, like they were waiting on this one (but must have thought Editilla moved away or some’ting :)…
    WWL covered it too somewhat better by speaking to actual people who were actually there. Also, I checked, and levees.org did indeed hire their own video people for this press conference so we will be seeing pieces on each of the other speakers.
    Gotta get through Mardi Gras first they say. Whew. Indeed!

    But did y’all see this yet?
    “Insurance Commissioner Jim Donelon rejects 19 percent statewide rate increase request by State Farm”

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