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   to exclude Fitzpatrick’s testimony and to exclude Blackwell’s testimony   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   to exclude Fitzpatrick’s testimony and its motions   to exclude Blackwell’s testimony will be denied.
Accordingly, it is hereby ORDERED That the motions of State Farm Fire and Casualty Company     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.