the good neighbor doesn’t want to play in the McIntosh neighborhood – Part 3: Rigsby sisters designate experts and disclose expert testimony

At your request, we have provided a report that we prepared regarding the Mucha Property at 2558 South Shore Drive, which is located less than 400 feet from the McIntosh house...

As can be seen from my Special Inspection report of the Mucha house, we concluded that the structure of the Mucha house was destroyed by wind before the storm surge of Hurricane Katrina arrived. The Mucha house was subjected to these conditions during the landfall of Hurricane Katrina on August 29, 2005 …

Mr. Mucha…stated that he saw the garage blow apart before 9:00 AM on August 29, 2005. This garage landed in the street in front of the house.

The disclosures of the Rigsbys’ expert witnesses  included the post-Katrina engineer’s report on the Mucha residence prepared by John A Fowler PE, President of Fowler Engineering.

There is over 1,000 feet of unobstructed open marsh behind the house which leaves a very large unobstructed path with for wind to come across the marsh from the south and southeast during a storm and damage the house. This is probably the reason why the Mucha house was destroyed by wind and some of the neighbors’ houses were not. The neighbors’ houses did not have an unobstructed path between their house and Hurricane Katrina as the Mucha’s did. With the Mucha’s house standing for some period of time before it was totally destroyed during Hurricane Katrina, it shielded the other houses in the neighborhood. The other houses in the neighborhood are also at varying angles to one another and shield each other, but this is not the case with the Mucha’s house.

With engineering reports like this replaced with one claiming flood damage, State Farm was unable to keep the whistleblowing Risby sisters down on the Farm.

Little wonder, then,  State Farm filed a Motion for Protective Order to limit the Rigsbys’ discovery to the McIntosh property only. After all, State Farm’s Protective Orders are Dispositive Motions in disguise –  a very thin disguise in the Rigsby qui tam after the Company’s local counsel Robert Galloway tossed his reputation for integrity to the wind in his Reply to the Rigsbys’ Response in Opposition to State Farm’s attempt to conceal evidence of the alleged fraud:

State Farm submits that Judge Senter’s reasoning as to the myriad differences among properties damaged during Hurricane Katrina undergirds his direct and repeated instructions to the parties that “[t]he trial of this case will be limited to the McIntosh claim,” September 24, 2009 Order…, and that the Court “will limit the presentation of evidence in this action to facts relevant to the McIntosh claim.” September 24, 2009 Order…

It has become increasingly clear that the Rigsbys have never accepted those admonitions because they are bound by the monumentally important fact that Kerri Rigsby not only handled the allegedly fraudulent McIntosh flood claim but actually approved the claim for payment. The Rigsbys hope to unreasonably expand the scope of discovery in this case beyond the McIntosh property for one reason: they are fishing for flood claims that do not directly implicate the exculpatory actions and decisions of Kerri Rigsby. That is not a valid justification for their request for discovery…

Make no mistake about Galloway’s intent. State Farm defense is and has always been all offense – shield evidence with protective orders and attack the Rigsby sisters.  However, contrary to what the Company claims, the prohibition against “jurisdiction in gross” does not limit the Rigsby sisters’ discovery to only the McIntosh claim.  Instead, it limits the Rigsbys’ to the elements of the fraudulent scheme detailed in their qui tam complaint. Mr. Galloway knows that – so does anyone who knows how to google®  up the Rockwell decision and read.

Galloway’s cheap-shot Reply for State Farm confirms whatever respect is accorded Judge Senter and justice for all will come from the Rigsbys’ counsel as evidenced by theResponse filed to State Farm’s outrageous attempt to limit discovery:

State Farm asserts that the contested discovery requests “do not pertain to the McIntosh flood claim and amount to mere speculation by the Rigsbys of the type that has been condemned by this Court.” State Farm’s Motion at 6. In fact, the Relators have tailored carefully their discovery requests based on this Court’s August 10, 2009 Order (“Order”) and this Court’s related rulings in individual policyholder cases. Accordingly, all of the discovery sought by the Relators seeks information that may lead to admissible evidence regarding whether the Defendants submitted a false claim with respect the McIntosh flood claim. (emphasis added)

In addition to those with expert testimony disclosed (listed and linked below), the Rigsbys have identified “unretained experts who may testify according to their expertise” including Robert McVadon,the contractor who rebuilt the McIntosh residence following Hurricane Katrina; a Representative of FEMA; Kerri and Cori Rigsby; and experts who examined neighboring properties.

Also identified as unretained experts are State Farm personnel, employees, contractors and agents; Haag Engineering personnel, employees, contractors and agents; and Fornsic personnel, employees, contractors and agents:

The Relators do not concede that any expert designation, report or disclosure is required for the potential testimony of the unretained persons identified above, either under the Rules or any order of this Court, but such designations are provided out of an abundance of caution.

The Relators designate and reserve the right to call any expert designated by Defendants or called by Defendants at hearing or trial.

The Relators further reserve the right to solicit testimony from any person identified by any party as a fact witness in this case, which may require such witness to rely upon their specialized knowledge, training, experience, education, or expertise in a particular filed or which may be considered “opinion” testimony. It is expected that such persons and any unretained persons would provide testimony consistent with any and all records they have generated and/or any testimony or statements provided to any person or party and within the realm of their expertise and training.

The Relators may also solicit expert testimony from any party in this case. It is expected that any opinions solicited from such parties would be opinions provided within the realm of their expertise and consistent with their business records and/or consistent with deposition testimony or statements provided on such subjects.

The Relators reserve the right to supplement this designation. The Relators reserve the right to designate additional experts and the Relators’ experts reserve the right to supplement, amend, or modify any of the opinions expressed in their reports as additional information may become available through discovery and at trial.

The Relators reserve the right to solicit testimony from any witness, lay or otherwise, who may have relevant opinions within the realms of their expertise.

Anyone following Katrina litigation understands the need for “an abundance of caution”.  In that regard, a look at the qui tam – related motions that are being filed in cases such as Spansel v State Farm is instructive.  A jury trial before District Judge Louis Guirola Jr. is set for the March 8, 2010 trial calendar.  Currently before the Court are the eight motions in limine filed by State Farm, as well as five filed by the Spansels.

While a post on the Spansel case will be forthcoming, one motion in limine is of particular relevance to the McIntosh claim: State Farm’s Motion in Limine No. 8: for a Ruling that Plaintiffs’ Acceptance and Retention of Flood Insurance Payments Constitutes a Binding Admission that at least That Amount of Flood Damage Occurred to Plaintiffs.

Both plaintiff and defendant acknowledge the Court has consistently ruled acceptance and retention of flood insurance payments constitute an admission of some damage caused by flood water.  Nonetheless, this issue comes up time and again in case after case.  It is also common knowledge the insurance companies were passing out flood payments as fast as checks could be written and those policyholders with both wind and flood coverage expected there would be a subsequent assessment of actual damage that would shift some, or even all, of the flood payment to the wind policy.  In other words, the admission poliyholders made was to damage from the storm.

ln their opposition to State Farm’s motion, the Spansel’s make an argument similar to the motion left on the table when Gange v State Farm settled:

While the Plaintiffs have lodged their objection with the rule of law as established by the Court, the Plaintiffs are fully aware of the rule and intend to frame their case accordingly with this Courts’ consistent ruling that the acceptance of flood insurance proceeds constitutes an admission that there was flood damage to the property. However, the Plaintiffs believe that such an admission must be heard in context of the storm, including but not limited to the fact that the Defendants made no on-site investigation prior to making the flood insurance payments; that the Defendant conducted no interview with Charles Spansel at the time it prepared the estimate of damages relative to the flood surge; that the Defendant simply administered the claim for the federal government and the payments made were government money; that the Defendant received a payment of several thousand dollars for administering the flood insurance; and finally, that the Defendant’s own activity logs demonstrate that the Defendant did not know the cause of the loss to be either wind or water.

From my perspective, the court erred in considering this an issue when, at best, it seems little more than smoke and mirrors.   Nothing prohibited a homeowner with damaged property and flood insurance from accepting a check before cause of damage was determined and payment for both wind and flood damage allocated accordingly.  The only possible motivation for insisting a flood payment is a judicial admission is to offset the amount due under a wind policy.

It will be interesting to see how Judge Guirola rules as, thus far, he has diligently segregated matters of law from the matters of fact a jury should decide.  What will be even more interesting is how the FEMA witness testifying in the Rigsby qui tam responds to questions on this matter related to the McIntosh claim in light of the Fowler Engineering report on the Mucha property.

Relators’ Designation of Experts and Disclosure of Expert Testimony

Report of Expert Witness Dave J. Favre, Sr.

Report of Expert Witness Louis G. Fey, Jr.

Report of Expert Witness Dr. Patrick J. Fitzpatrick, Ph.D

Report of Expert Witness John A. Fowler, P.E.

Report of Expert Witness Joe Gregg

Report of Expert Witness Dr. R. Ralph Sinno, Ph.D.