Last Friday, this was “breaking news” but with my Christmas tree still up, I had to set priorities and these latest Orders from Judge Senter merit more than just a “pop-up” post. If you need background, check the SLABBED post published November 24, 2010, for Judge Senter’s earlier Orders admitting the testimony and/or report of Rigsby expert witnesses Dave Favre and Brian Ford.
After three years of following Katrina insurance litigation, much of it involving State Farm, I thought I’d reached the point where nothing would surprise me. However, State Farm’s legal eagles (AKA “the buckin fuzzards“) clearly proved me wrong with the Company’s Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: The Brian Ford Report and Memorandum in Support of Motion for Reconsideration of the Court’s Opinion and Order re: Dave J. Favre, Sr.
However, I wasn’t as surprised by content as I was shocked by the threatening tone – and how it intensified in State Farm’s replies in rebuttal to the Rigsbys’ Response in Opposition to each of the Company’s motions. As I was reading, I began to wonder if Judge Senter felt like Travis Brickle when he took a look at State Farm’s briefs:
“You talkin’ to me? You talkin’ to me? You talkin’ to me? Then who the hell else are you talkin’ to? You talkin’ to me? Well I’m the only one here. Who the fuck do you think you’re talking to?”
For example, inState Farm’s Rebuttal brief asking for [demanding, IMO] reconsideration of Judge Senter’s decision on the admissibility of the Brian Ford report, the Company wrote:
Until now, no federal court has ever held that a document based on an inadmissible and false triple hearsay statement can be proffered to a jury for the truth of the matter asserted therein under the business records exception to the hearsay bar. This unprecedented holding is clear legal error which, if left uncorrected, could require that the case be re-tried if the Rigsbys prevail before a jury…In order to avoid a lengthy appellate process that may require a second trial, State Farm respectfully [sic] requests that this Court reconsider its November 23, 2010, Opinion () and Order (), and exclude the Ford report and related evidence from trial.
The Rigsbys’ opposing Response that State Farm’s brief was rebutting, on the other hand, made a compelling argument in language mild as toast:
The Court should deny State Farm’s motion to reconsider for the same reasons that it denied State Farm’s initial motion in limine. No new circumstances have arisen that would undermine the reasoning of the Court’s November 23 Order and justify the extraordinary remedy of reversing a decision on a motion in limine. And State Farm’s request remains premature; Relators have neither attempted to introduce the Ford Report, nor announced the purpose(s) for which they would do so. If and when Relators offer the Report into evidence, the Court will have a context for deciding what should be admitted and what limiting instructions to the jury might be appropriate Without that
context, State Farm’s request is necessarily based upon speculation as to what might occur at trial.
State Farm’s Rebuttal brief on the Company’s motion for reconsideration of the Court’s decision to allow Dave Farve’s to testify and admit his report had a tone similar to that of the Company’s rebuttal brief on its motion regarding the Brian Ford report:
In its opening papers, State Farm identified two clear and reversible errors in the Court’s November 18, 2010, Opinion () regarding David J. Favre, Sr. Left uncorrected, these errors would entitle State Farm to a new trial (at the very least) should the Rigsbys prevail before a jury. State Farm’s motions for reconsideration “‘serve the narrow purpose of allowing a party to correct manifest errors of law or fact.’” Odom v. Troy Constr., L.L.C., No. 1:09-cv-367, 2010 WL 519744, at *1 (E.D. Tex. Feb. 9, 2010) (granting motion for reconsideration, quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)).
The Rigsbys attempt to obfuscate the issues and misstate the Court’s holdings in their opposition – but they do not dispute that errors exist within the rulings. In order to avoid a lengthy appellate process that may necessitate a second trial, State Farm respectfully requests that this Court reconsider its November 18, 2010, Opinion () and Order (), and exclude Mr. Favre’s testimony and report from trial.
“OOOOOOOOOOOOOOOoooooooowwwweeeeeeeee”, don’t you think, Curious George? Perhaps, State Farm’s bold claim to superior knowledge and power was a knee-jerk retort to the suggestion of the Rigsbys usually unflappable counsel who wrote in the Relators’ Response:
State Farm is displeased with the Court’s November 18, 2010 Order (the “Order”) regarding the testimony of Mr. David Favre. State Farm therefore requests that the Court
reconsider the issue and reverse its ruling. They present no new evidence and no new arguments; they simply disagree with that ruling and want the Court to reverse itself.
In its Motion, State Farm rests entirely on two claims: that “Mr. McVadon’s Report and Testimony are Clear Evidence of the Actual Repair Costs to Restore the McIntosh Home to Its Pre-Storm Condition” and “The McVadon Report Demonstrates that the McIntosh Claim Was Not Objectively False and Renders the Favre Report Irrelevant.” Mot. at 2 and 4. But in its prior motion to exclude, State Farm had argued that “[t]he law instructs that actual repair costs trump estimated repair costs” and “Mr. Favre’s Estimate is Superseded by Actual Repair Costs.” State Farm’s Reply in Support of Its Renewal and Supplementation of Its Motion (, , , and ) to Exclude the Rigsbys’ Expert Witness David J. Favre  (“State Farm’s Prior Reply”) at 2 and 9. The Court properly rejected that argument in its entirety. See Mem. Op..
Upon due consideration of the motion  of State Farm Fire and Casualty Company for reconsideration of the Court’s ruling… and after a review of the portions of the record offered by the movant in support of this motion, it is hereby ORDERED That the motion is DENIED.
Tomorrow counsel for both parties will meet with Judge Senter for the rescheduled Status Conference. Comments from anyone attending will definitely be welcome on SLABBED.