Compel the cat from the bag of Haag’s “pig in a poke” report – a Rigsby qui tam update

A common scheme “in the Late Middle Ages, when meat was scarce but cats were not…entailed the sale of a suckling pig in a poke” but “the wriggling bag would actually contain a cat”.  A common scheme after Hurricane Katrina was word games like the Haag Report – State Farm’s “cat storm” in a bag that Haag wants us to believe was sold as a “pig in a poke”.

SLABBED isn’t buying the claim that State Farm bought “a pig in a poke” report and neither are the Rigsbys – Relators’ Expedited Motion to Compel Haag Engineering Co. to Produce Documents and Answer Interrogatories Prior to the Depositions of Tim Marshall and Paul O’Connor

Haag’s bright line objection to all discovery requests that relate in any way to events that occurred after October 4, 2005 is improper and the Relators are entitled to the Contested Discovery prior to the depositions of the Haag employees. Accordingly, for the reasons set forth below, the Relators respectfully request that the Court order Haag to produce responsive documents and answer the contested interrogatories at least seven days prior to the depositions at issue. Because Haag has noticed the depositions for April 5-6, the Relators request that the Court order Haag to produce responsive documents by March 29, 2010. However, if that time frame is not reasonable and convenient, Relators request that the Court either (1) require Haag to reschedule the depositions for at least one week after Haag produces the contested documents and answers the contested interrogatories; or (2) allow the Relators to depose the witnesses again after Relators receive the discovery information at issue.

Judge Walkers “bright light” Order , however, was issued on April Fool’s Day and responds to neither request but largely grants the Relators’ motion otherwise:

At present, this lawsuit is proceeding with respect to the McIntosh claim only. As an initial matter, the Court finds that the latest date for discoverable information is the date on which the McIntosh homeowner’s claim was closed. Although the McIntosh flood claim was closed on October 4, 2005, the alleged conspiracy that is the subject of this lawsuit continued beyond the final adjusting of the flood claim; therefore, the relevant time frame for discovery includes the time up to and including the date that the McIntosh homeowner’s policy file was closed. The Court overrules Haag’s objections that seek to limit production to events that occurred prior to October 5, 2005. To the extent that Haag has not provided this later dated material as to any of the discovery requests, the motion to compel is granted. However, the Court notes that it does not appear that Haag was involved in the investigation and adjustment of the McIntosh claim; therefore, it is unclear whether expanding the time frame will result in much additional discovery. Moreover, as demonstrated in its response, Haag has agreed to supplement certain discovery responses to account for some activity and information from October 5, 2005 and beyond.

Since Haag’s attorney Larry Canada was known first as counsel for Forensic (FAEC) in McIntosh v State Farm and the Company is having difficulty maintaining counsel to defend the Rigsby qui tam,I had planned to cover the Rigsbys’ motion in Forked…part 2 as “forked” seemed particularly relevant to an introduction of Canada.  However, “cat in the bag” works, too, but the public hissing contest he attempts as a defense for Haag doesn’t work at all.

The Rigsbys Motion to Compel Haag’s response to Interrogatory No.1 provides the opportunity to examine Canada’s strategy of “hissing” around with word games. 

Interrogatory No. 1: Identify any surveys, reports, or other analyses of weather conditions during Hurricane Katrina or damage caused by Hurricane Katrina that you Provided to State Farm.”

Haag Engineering Co.’s Response in Opposition to Relator’s Emergency Motion to Compel responds to Interrogatory No. 1:

Relators ask Haag to identify “surveys, reports or other analysis of weather conditions during Hurricane Katrina” that were “provided to State Farm.” After objection, Haag responded, “Haag did not provide any surveys, reports or other analyses of weather conditions during or damage caused by Hurricane Katrina specific to the McIntosh property or ‘similar properties’ before October 5, 2005.” The reason for this response is twofold.

First, the only Haag “survey, report or other analysis” at issue in this lawsuit is the Haag Survey, and Haag did not “provide” the Haag Survey to State Farm, but rather, State Farm legally purchased the Haag Survey at the same price as any other person or entity. Thus, Haag did not list the Haag Survey in its response to Interrogatory No. 1, because Haag felt the Haag Survey did not qualify as responsive to the request. Nevertheless, Haag will supplement its response to Interrogatory No. 1 and listed the Haag Survey.

Second, the interrogatory seeks unbridled information concerning causation investigations and reports by Haag at State Farm’s request for individual homeowners. Thus, to the extent Relators seek Haag surveys, reports or other analysis for individual homeowners, the interrogatory is overly broad, not limited in scope or time, and seeks irrelevant information that is not reasonably calculated to lead to the discovery of admissible evidence. The ONLY survey or Haag work-product at issue in this lawsuit is the Haag Survey, and therefore, any State Farm assignments to Haag for individual homeowner files are irrelevant and seek information which is confidential and/or privileged.

This Court has historically limited production of engineering reports and/or insurance claim files to a certain radius of the disputed homeowner’s property. Indeed, that is what the Court did with respect to State Farm in this case, and State Farm was ordered to produce homeowners’ file information within a one half-mile radius of the McIntosh home. Also, ordering production by State Farm is different than ordering Haag to produce engineering reports for a one half-mile radius (noting Relators did not geographically limit their request to Haag): at issue against State Farm is State Farm’s adjustment of homeowners’ files, while against Haag the issue is the creation of the Haag Survey. If Haag were involved in the adjustment of the McIntosh insurance claim (flood or homeowners) then Haag would agree that discovery on that point may be relevant or lead to the discovery of admissible evidence; yet, Haag was not involved in any capacity with the McIntosh claims.

Additionally, the interrogatory itself is vague because it asks for production of “surveys, reports or other analysis” that Haag “provided” to State Farm. Again, the Haag Survey is the only “surveys, reports, or other analyses of weather conditions” at issue in this case. The Relators argue that “Relators are entitled to discover weather information Haag provided to State Farm related to Hurricane Katrina, even if the information was provided after October 5, 2005.” See [432], pg. 5-6. But the interrogatory does not ask for simple weather information data communicated to State Farm; “surveys, reports, or other analyses of weather conditions” differs from simple weather data.

To the extent Haag “provided” weather information to State Farm, Haag produced emails wherein Haag employee Tim Marshall communicated weather data to State Farm employee Dave Randel. The communications did not contain surveys, reports or analysis of weather conditions, but instead, contained simple recitation of weather data. Haag will supplement its discovery responses with Tim Marshall emails dated after October 5, 2005 that contain additional weather data communicated to Dave Randel. Again, however, it is Haag’s position that such communications are not what Relators requested.

In sum, Haag fully responded to the question asked to the extent it was not objectionable. Haag should not be ordered to produce individual homeowner information or causation reports when Haag is not on trial for reports on individual homeowner properties. Relators’ Motion to Compel any further response to this interrogatory should be denied. (emphasis added)

The Rebuttal filed by the Rigsbys replies to Haag’s response:

Haag’s response appears intentionally vague. First, Haag asserts that it does not consider the Haag survey to be responsive to this interrogatory because “Haag did not ‘provide’ the Haag survey to State Farm, but rather, State Farm legally purchased the Haag Survey at the same price as any other person or entity.” Response at 10. “Provide” is defined in part as “to furnish; supply” or “to make available”.1 It cannot genuinely be disputed that items that have been “legally sold” have not also been provided.”2

1 Webster’s Second Dictionary Copyright 1984.
2 Haag’s website notes that it has “provided expert forensic engineering and consulting services worldwide.”
Available at http://www.haagengineering.com. Haag’s counsel’s website notes that they “provide consistent service
to our clients.” http://gjtbs.com/ Surely neither company is representing that it only works on a pro bono basis.

Second, Haag states that emails between Tim Marshall and Dave Randall, a State Farm employee, that “communicated weather data” were not responsive to this interrogatory because they “did not contain surveys, reports or analysis of weather conditions, but instead, contained simple recitation of weather data.” [44] at 12 (emphasis added). The distinction between a “recitation” of weather data and a “report” on weather data or a “survey” of weather data is equally vacuous.

These explanations have left the Relators concerned that Haag is withholding otherwise responsive documents based on language games. Haag should fully respond to the Relators’ discovery. (emphasis added)

The Rigsbys reply only offered a rebuttal to the first of Haag’s two-fold objections.   Judge Walker, however, addressed both in his Order:

Relators request Haag to identify any surveys, reports or other analyses of weather conditions during Hurricane Katrina or damage caused by Hurricane Katrina that Haag provided to State Farm. To the extent that Relators’ request seeks information Haag provided to State Farm for individual homeowners other than the McIntoshes, the motion to compel is denied. Haag has stated that it will supplement its interrogatory response to include the Haag Survey and emails from Tim Marshall dated after October 5, 2005. Relators contend that they are “concerned that Haag is withholding response documents based on language games.” This contention lacks sufficient specificity to form the basis for compelling discovery. However, the motion is granted to the extent that Haag shall provide all discoverable information responsive to this interrogatory within the relevant time frame, i.e. up to and including the date that the McIntosh homeowner’s claim file was closed. Such information should include, in addition to the Haag Survey, any generalized descriptions of weather conditions during Hurricane Katrina that Haag provided to State Farm (hereinafter “other reports”). (emphasis added)

As I read the Order, I was reminded of the graphic depicting research findings on the skill levels of reading comprehension with “literal” as the lowest and other research defining “functional illiteracy” as the inability to identify the main idea in news story or similar document.  I say that as I’m uncertain how much more specific Counsel could have been about word games given the documentation from Webster’s or why it wasn’t clear to the Court that the Haag Survey is relevant to State Farm ‘s handling of every Katrina claim without geographic or time limitations.

Nonetheless, Haag’s word games and hissing around the issues are certain to continue as the Rigsbys’ qui tam case moves forward as the Company has no legitimate defense.

In the survey, Marshall estimated Katrina’s peak wind gusts at 115 mph in Bay St. Louis, the hardest-hit area. He concluded the storm surge arrived before peak winds and that there was no tornado damage along the Coast. Reports from other sources measured wind gusts of 140 miles per hour, found evidence of tornados or tornadic winds and of wind damage well in advance of Katrina’s unprecedented surge.

Haag offers Tim Marshall as an “expert witness” but those “in the know” have told SLABBED that Marshall continued to use his low numbers adjusting claims “one, two, even three years” after his first report.  Such deceptive practice is consistent with documentation Haag’s reputation as a “bought and paid for expert” providing justification for denial of policyholder’s claims is well-founded.

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