Judge Senter issues “tell all” Order and Opinion, puts more heat under State Farm – update on Rigsby qui tam

Most who feel the heat see the light – and then there’s State Farm.  Will Judge Senter’s “tell all” Order and Opinion on Expert Witness Qualification that hit the Rigsby qui tam docket yesterday produce the flicker needed for State Farm to see it’s time to file another Motion to Withdraw?

First, the “tell all”:

“The Relators have identified six expert witnesses, and State Farm Insurance Company (State Farm) has moved the Court to exclude the opinions expressed by all…”

Next, Judge Senter’s Opinion of State Farm’s four motions regarding two of the Rigsbys’ expert witnesses, noting that when Judge Senter puts the heat on, he uses a torch:

“Patrick J. Fitzpatrick, Ph.D., (Fitzpatrick) and Keith G. Blackwell, Ph.D., (Blackwell) are meteorologists. According to their reports, they will be called to testify concerning weather conditions, particularly wind speed and storm surge flooding during Hurricane Katrina. Fitzpatrick’s testimony and Blackwell’s testimony do not relate specifically to the storm damage to the McIntosh property. Rather, their opinions are general in nature, indicating the time the storm forces’ effects were manifested on shore and the strength of those forces.

State Farm’s motions [294] [705] to exclude Fitzpatrick’s testimony and to exclude Blackwell’s testimony [296] [719] are premised on State Farm’s contention that Fitzpatrick’s and Blackwell’s opinions are irrelevant since these opinions do not deal specifically with the damage to the McIntosh property and the cause of that damage, two of the key issues in this case.

It appears to me that both Fitzpatrick’s testimony and Blackwell’s testimony are relevant and admissible under Federal Rule of Evidence 702 and under the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). While their testimony does not deal specifically with storm damage to the McIntosh property, their testimony does illuminate many important aspects of the storm’s dynamics, and these dynamics are the setting in which the damage to the McIntosh property took place.  It is not necessary that any given expert’s opinion address every relevant issue in a case or any particular issue.

Parties may use competent expert opinion testimony to establish any disputed fact, and expert opinions may be relied upon by other experts to support their own opinions, as is the case here. R. Ralph Sinno’s (Sinno) report specifically references Fitzpatrick’s report and relies upon Fitzpatrick’s opinions. The subject matter of Fitzpatrick’s testimony and Blackwell’s testimony, the storm’s dynamics, the strength of  the storm’s forces and the timing of their effects on shore is relevant to the issues in this case in my view.”

Last, the Order – and it’s no surprise to those who see the light from Senter’s Opinion:

“Accordingly, State Farm’s motions [294] [705] to exclude Fitzpatrick’s testimony and its motions [296] [719] to exclude Blackwell’s testimony will be denied.

Accordingly, it is hereby ORDERED That the motions of State Farm Fire and Casualty Company [294] [705] [296] [719] to exclude the testimony of Patrick J. Fitzpatrick, Ph.D., and to exclude the testimony of Keith G. Blackwell, Ph.D., are DENIED;

SO ORDERED this 4th day of August, 2010.”

Has there ever been a torch hotter than Judge Senter’s Opinion that “damage to the McIntosh property and the cause of that damage” are just “two of the key issues” in the Rigsby qui tam case?  The SLABBED say not!

One last item, an update on the status of defendant Forensic Analysis & Engineering Corporation (FAEC):

Yesterday’s docket also showed the entry of a text only Order related to a FACE Motion to Clarify filed almost a full year ago (August 24, 2009).  The referenced motion sought the Court’s acknowledgment (clarification) of the Company’s various “joinder” motions; called attention to the “Relators…[having previously]…waived all of their claims against Forensic except as to conspiracy”; and sought dismissal as a matter of law with an argument so weak that the motion was all but moot on arrival.

Judge Senter’s Order simply made “moot” official “in light of the 713 Order dismissing Defendant Forensic Analysis Engineering Corporation as a party to this cause of action…” (NO FURTHER WRITTEN ORDER SHALL ISSUE. Signed by District Judge L. T. Senter, Jr., on August 4, 2010.)

However, the docket entry for Judge Senter’s otherwise routine Order dismissing FAEC merits attention:

“ORDER GRANTING MOTION OF FORENSIC ANALYSIS ENGINEERING CORPORATION TO DISMISS: Order granting 693 Motion to Dismiss the Defendant, Forensic Analysis Engineering Corporation only. This does not close case. Signed by District Judge L. T. Senter, Jr on 7/29/2010.”

Judge Senter, torch in one hand and pen in the other, clearly intends to try the Rigsby qui tam case on the merits of the Rigsbys’ claims.

5 thoughts on “Judge Senter issues “tell all” Order and Opinion, puts more heat under State Farm – update on Rigsby qui tam”


    The engineers are the scapegoats. Once an engineer does his scientific analysis, the insurance company hangs their hat on it and denies the claim or translates costs to someone else — the policyholder and/or the government.

    After the engineering report is submitted to the insurance company, then the insurance company will apportion the liabilities however it wants.

    The real corruption in all of this is singular: Engineering reports that cannot withstand the normal standards for engineering.

    No one at any insurance company expected insurance industry person(s) to blow the sticky note across a lawyer’s desk.

    Now, how does a lawyer go about proving the authenticity of a sticky note and the verbiage contained on it?

    Last but not least, meteorologists are not engineers. Do you trust your weatherman? Why? A 60% chance of rain is no rain at all in most places.

  2. Take it from a CPA who’s profession hs also been made a scapegoat, there are those who keep their professional legs closed and those who don’t. Tim Marshall is a whore IMHO and it shows thorugh very clearly. Other professionals such as John Minor aren’t and that shows through too.

    State Farm and Lecky King herself verified the authenticity of that sticky note. Forensics did not have to sell out but they did. Nellie Williams must be called to account. After all, how many cold nights did policyholders suffer in FEMA trailer because insurers did not pay their c0ntractual obligations? If you haven’t been there Bro I highly recommend the experience and you’ll understand why people down here want justice.

    If you are the same concerned citizen as I remember from our Moultrie blogging welcome back to Slabbed.


  3. I probably am that “concerned citizen” of prior as I often use the moniker.

    You are absolutely correct about the “keeping legs closed.”

    That is the entire basis of the conspiracy — and I do mean that it IS a conspiracy. Lawyers are in it, too. How? Because most states have statutory standards for claims handling. The states also have statutes against insurance fraud. Under those statutes, there is usually a shift in responsibiltiy from the insurance company to someone else and allows them to void the policy.

    Engineers also carry the equivalent of malpractice insurance. I believe “the plan” of the insurance companies was to scapegoat the hired-gun engineer if the engineer ‘got caught. The insurance company would void the policy saying, “It’s not our fault. It’s the engineer’s fault.” The insurance companies would use the Courts to do it, too. That’s how the lawyers finally tied into the final slice-and-dice strategy.

    By ‘subrogating’ the engineer’s professional liability policy, the insurance company is still off the hook — even though it was the insurance company that created the ‘master plan.’

    The situation is similar in Afghanistan — where accepting bribes is commonplace. The problem is that noone is asking who the bribers are.

    In this case, the bribe is actually the volume of business being offered by the insurance companies to, lets call them, cooperative engineering firms who have good legal staffs.

    I’m sure that noone at any insurance company predicted that an adjuster(s) would turn over a sticky note.

    That soiled the plan — otherwise, I think you would see a lot of engineers being sued by insurance companies that would “hit limits” on the engineers’ malpractice insurance policies.

    It’s a sick world, today.

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