Oh, what a tangled (Dr.) Webb Nationwide and USAA are weaving – Hillier v USAA; Politz v Nationwide

Back in news on SLABBED  is Nationwide’s favorite psychiatrist – Mark Webb, M.D., more tangled than ever in Politz v Nationwide and now tangled in Hillier v USAA, too.   Plaintiff’s attorney Tina Nicholson explains just how tangled in a Motion to Exclude the Testimony of Dr. Mark Webb USAA’S Expert.

COMES NOW the Plaintiff, Honora Hillier and moves to exclude the testimony at trial of Mark Webb, a psychiatric expert designated by the Defendant, USAA Casualty Insurance Company (“USAA”). Webb is expected to testify at trial about the extent of Honora Hillier’s emotional distress due to USAA’s failure to properly pay the insurance claim.

Webb’s testimony should be excluded because it is not based on reliable facts or methodology. Webb, a psychiatrist, apparently intends to testify about Honora Hillier’s emotional and/or mental condition although he has neither examined her nor reviewed her medical records. There is absolutely no basis in fact for Webb’s opinions. Moreover, the one relevant opinion that Webb does offer — that Hillier suffered stress as a result of Hurricane Katrina-related events — is not one that requires a medical degree to make.

Webb is a medical doctor and a psychiatrist. His expert report is attached hereto as sealed Exhibit A. Webb’s report states that he was not able to review any of Hillier’s medical records. He requests the opportunity to examine Hillier “to further investigate her psychiatric issues, if any.” However, Webb never examined Hillier.

Webb cannot testify regarding Hillier’s medical condition because he has not reviewed any of her medical records and has never examined Hillier. Continue reading “Oh, what a tangled (Dr.) Webb Nationwide and USAA are weaving – Hillier v USAA; Politz v Nationwide”

What’s the score? No, not the Saints game, I know they won – I’m talkin’ Katrina litigation and then some

So, what’s up besides the Saints? Well, for starters there’s the trial of Bossier v State Farm that got underway yesterday after the jury was seated mid-afternoon.  The grapevine reported there was time for opening statements (with no personal commentary re: Bossier’s motion in limine) and one witness before Court ended for the day.   The second day began at 10am and hopefully I’ll get another grapevine report or there will be something in the Sun Herald.

State Farm filed an an 11th hour trial brief, but  an interesting one nonetheless, that sets forth the Company’s position on the meaning of the Corban decision:

State Farm anticipates that Plaintiff at trial may attempt to satisfy his burden of proof merely by pointing to the totality of damage to his house at the conclusion of Hurricane Katrina. Continue reading “What’s the score? No, not the Saints game, I know they won – I’m talkin’ Katrina litigation and then some”

The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide

It certain seems to be the way to succeed with protective orders – looking as if you’re playing by somebody else’s rules, while quietly playing by your own. Perhaps someone at the Court will soon catch on with so many different plaintiffs’ counsel voicing opposition to the Gomer strategy.

Montet’s counsel, DeborahTrotter, certainly could not have made her opposition plainer in the Sur Reply she filed today refuting  defendant State Farm’s Rebuttal in Montet v State Farm:

Plaintiffs’ hereby incorporate their Reply in its entirety and maintain their position that the Defendant has not met its burden to demonstrate the documents and information at issue in its privilege log… should be deemed confidential and protected. Therefore any protective order at this time would be premature, including Defendant’s newly proposed “blanket” protective order, which was attached as Exhibit C to its Rebuttal…

Again Plaintiffs point out that Defendant has listed only 46 documents in “II. Privilege Log” that allegedly qualify for protection as Trade Secrets. However, instead of complying with the Rules of Civil Procedure 26 and the Uniform Local Rule 26.1 by providing the Court and Plaintiffs with a proper privilege log that contains information required to determine whether a qualifying privilege exists, the Defendant opted to again ignore the requirements of seeking and obtaining a protective order by good cause shown and submitted yet another proposed “blanket” protective order for the Court to enter. (emphasis added)

Rule 26 FRCP provides little bend; and, yet, the sheer number of pages makes a page-by-page determination of good cause a formidable task.

However, the Fifth Circuit provides some guidance in a 2002 Order issued in Continue reading “The fastest way to succeed is to look as if you’re playing by somebody else’s rules, while quietly playing by your own – an update on Montet v State Farm and Politz v Nationwide”

The pain is just not mine – an echo of CresentCityRay

But when you’ve worked hard all your life, and you have a spouse that’s done the same, and you’ve got goals that you’re working for and you think you’re covered, then you find out that it’s not happening, you’re not covered, or so to say. The help that you were planning on that you were paying for all those times, it’s not there. It’s very depressing.

The pain is just not mine, wrote CrescentCityRay –  and it is not.  Listen to the echo as another story of post-Katrina mental health continues.

I became stressed the minute I found out my home was gone. I saw it on the — on TV in Alabama. And they had an up-in-the-air shot, and they went over Long Beach Oaks. And I seen that every house there was gone in that little area. So, I knew mine was gone too. And that was upsetting.

But, you know, we still thought Nationwide was going to take care of us. So, I really didn’t get that depressed over it. It was stuff. It wasn’t our life. I was happy that John and I and my little dog had gotten out okay. But once Nationwide started messing around, I got a suspicion that they were trying to get out of it because of the way I was being treated by them. I asked them when they went out to review it to — when they sent people out, I asked them to let me know in advance, and they never did. They would call me after it was done. It looked like they were avoiding me. And that was upsetting.

But when I got the letter of denial, I went into depression. And my husband, he was worse, and he — I felt terrible, and then I would see him and how he was reacting to it, and it was just very depressing for me for myself.

I didn’t know what we was going to do. I didn’t have the answers. I cried. I had a lot of headaches. I went around crying all the time. I didn’t know what I was going to do. We was living for the moment. We had no future, no plans, no anything. Continue reading “The pain is just not mine – an echo of CresentCityRay”

expedite is a plaintiff’s turtle and insurer’s hare

turtlehare no linesThere is a time disparity is the Court’s treatment of plaintiffs and defendants that has resulted in a situation where expedite is a plaintiff’s turtle to the advantage of insurer defendants making expedite their hare.

Turtles are everywhere in Katrina litigation – often with the information needed to represent the plaintiff shielded in privilege logs that do not comply with applicable rules and law.  Discovery is a nightmare.  Decisions routinely are based on defendant’s claim discovery has been completed, even when plaintiff’s claim to the contrary.  The Court seeming makes no independent inquiry and issues knee-jerk orders with regularity.  Plaintiff’s counsel takes his or her life in hand when meeting the ethical responsibility to file a request for reconsideration of a Magistrate’s order – so much so that rumor has it the plaintiff’s bar has purchased purple hearts.

How evident it is to others, I don’t know.  How regularly anyone reviews the dockets is something I can’t begin to guess.  An attorney I am not; but, one need not be to know that motions related to discovery merit a timely response and it’s just not happening.

Nowhere is the disparity between the Court’s treatment of plaintiffs and defendants more evident than Continue reading “expedite is a plaintiff’s turtle and insurer’s hare”

Federal District Court Judge offers tutorial – proof of loss and segregation of damages

Intended as a tutorial or not, Louisiana Federal District Court Judge Sarah Vance wrote one in her pick ’em up – put ’em down examination of the case law on proof of loss and segregation of damages.  Follow her through the process that leads to an insurer must also make a specific showing of what damage was caused by the excluded cause. (Order and Reasons Imperial Trading v Travelers )

The plaintiffs in this case are the owners and lessees of commercial properties that were damaged during Hurricane Katrina. At the time of the hurricane, the properties in question were insured by defendant Travelers Property Casualty Company of America. Plaintiffs submitted a claim to Travelers shortly after the hurricane, and Travelers advanced plaintiffs $1 million for the covered losses to one property on September 25, 2005.  Plaintiffs claim that Travelers failed to participate in the adjustment process in good faith after that point, reimbursing plaintiffs for portions of the covered loss in small increments over the following year but denying coverage for several claims falling under the coverage of the policy.

The plaintiff’s claim at issue in this order is for a loss of more than $8,000,000.  Both parties filed motions for partial summary judgment – plaintiffs’ as to burdens of proof and segregating damages; defendant’s as to plaintiffs’ claim for damages to contents.

The parties agree that such stock was covered by the insurance policy and that it was damaged. The policy notes that the insurer “will pay for direct physical loss or damage to Covered Property caused by or resulting from a Covered Cause of Loss.” “Covered Cause of Loss” is defined as “risks of direct physical loss” unless the loss falls into a particular exclusion.  “Stock” is included among the Covered Property section, and is defined elsewhere as “merchandise held in storage for sale, raw materials and inprocess or finished goods, including supplies used in their packing or shipping.”


The Lesson: Who bears the burden of segregating covered from non-covered losses once and insurer shows that an exclusion applies to some loss? Continue reading “Federal District Court Judge offers tutorial – proof of loss and segregation of damages”

Judge Walker orders ANOTHER settlement conference in Politz v Nationwide

A “settlement conference” is somewhat a mystery to me.  I read about them in scheduling orders and, when  a case makes it to that point, I also read the docket entry:Pages from DktRpt Politz thru 4 23 09

At times I’ve seen a notice on a docket reminding both parties that each is to submit a settlement proposal to the court prior to the meeting.  All of this led me to believe these conferences are very proper, formal meetings and nothing I’ve read has suggested more than one  is scheduled by the court – or rather nothing I’ve read until last week:politzMediatorMeltdown

What you see on the Politz docket for 7/28/09 is a TEXT ONLY ORDER issued by Judge Senter setting the Expedited Briefing Schedule Respectfully Requested by Counsel for Mrs. Politz with the Motion for Review of and Objection to the United States Magistrate Judge’s Order denying Mrs. Politz’s motion to designate her own mental health expert.

Counsel for Mrs. Politz also requested a hearing on the Motion; BUT, what you see in the three entries above Judge Senter’s Order is a Notice of Hearing Settlement Conference – and who’s idea was that? Judge Walker’s?  Is this cartoon from Nowdy’s newest favorite, LawComix, a more accurate view of a settlement conference than the formal meeting I had in mind?  Continue reading “Judge Walker orders ANOTHER settlement conference in Politz v Nationwide”

Keeping score #4 – Who’s calling the game?

After a review of the pleadings and the applicable law, and considering argument of counsel, the Court finds as follows…

Who made the call?

The actual issue now before the Court is whether discovery propounded and responded to in state court is valid and enforceable and whether or not the limitations of 30 contained in the federal court case management order should be interpreted to include the already propounded state court discovery. Had counsel raised the issue, it is probable that the undersigned would have allowed a very limited amount of additional discovery. Because no attorney mentioned the prior discovery, the usual limitation of thirty was included in the case management order. Unaware of the state court discovery when the order was entered, the undersigned had no “intent” either way by entry of the Order…

Who made the call?

Counsel have both submitted pertinent cases…Some of the cases involve discovery propounded but not answered prior to removal. The law is clear that this discovery is no longer answerable, as Rule 26 specifically provides that no party shall serve or seek discovery from any source until after the attorney conference required in Rule 26(f). The law is less clear as to discovery which was both served and answered in state court.

After careful review of the authoritiesContinue reading “Keeping score #4 – Who’s calling the game?”

…and you were expecting Patsy Cline?

Sorry but it’s just Nationwide; and, worse yet, the Company is singing way off key.

If you recall Judge Walker’s unfortunate decision granting Nationwide’s Motion for Mental Examination of Plaintiff in Politz v Nationwide, you may also remember Dr. Mark Webb is the psychiatrist Nationwide selected to conduct the examination.

He is also resume-lite.

Consequently, Counsel for Mrs. Politz filed the  Notice of Issuance of Subpoena to Produce Documents, Information or Objects seeking additional information on Dr. Webb’s qualifications and related experience.  SLABBED reported the Notice in a recent Katrina litigation update.

Yesterday – and apparently without reading Dr. Webb’s resume-lite –  Counsel for Nationwide filed a Motion to Quash the Plaintiff’s subpoena.

Nationwide claims the ten year time framed [sic] …is overly broad and burdensome and  many of…[the fourteen categories of documents]…have no relevance to the claims or defenses asserted by the parties to this action. Nor do these documents have any probative value on issues of any potential bias by Dr. Webb.

Nationwide is not Patsy Cline but those claims are Crazy:

Events from 1999 to 2009 are totally missing from his resume and only one dated 1999 is listed – overly broad, not!

Try lacks relevance: Continue reading “…and you were expecting Patsy Cline?”

O’Bannon cites Corban transcript in Motion to Stay case against Nationwide

Honesty is the best policy – and, a hurricane policy written to exclude damage from a hurricane is honestly not the best policy.

Consequently, Counsel for O’Bannon filed a Motion to Stay O’Bannon v Nationwide pending the Mississippi Supreme Court’s decision in Corban v USAA claiming, Nationwide further showed its “true intention” of unfair and unconscionable application of the ACC to exclude coverage to its insured during questioning from Chief Justice William L. Waller, Jr.:

JUSTICE WALLER: Do you agree – Nationwide was a  party to the Dickinson case. Do you agree with Judge Senter’s ruling in that?

MR. LANDAU: No, Your Honor. We respectfully do not. We think its inconsistent with Leonard case and the Bilby case and the Tuepker case from the Fifth Circuit.

JUSTICE WALLER: Would your company have paid the  same losses that USAA has voluntarily paid in the Corban  case?

MR. LANDAU: Our company [Nationwide] has –

JUSTICE WALLER: On wind damage? On wind damage?

MR. LANDAU: Your Honor, our company would not  feel compelled by the clause by the plain language to pay.

JUSTICE WALLER: So you wouldn’t?

MR. LANDAU: Our position is that we are not  required to pay those losses. Sometime, where we believe that you can really show that these pure wind losses  covered, then we’ll pay wind losses.

But we certainly don’t believe that the Plaintiffs can  be free to go out and get whatever expert they want and  get to a jury on these kind of issues, where we carry our burden of showing that, regardless of the sequencing, the water was sufficient to cause the loss. Because we believe that that’s why these clauses — that’s the whole  point of the clause.

And, that’s the “whole point” of O’Bannon’s motion: Continue reading “O’Bannon cites Corban transcript in Motion to Stay case against Nationwide”