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.
As reported in Now, about that document State Farm produced for Judge Senter in Rigsby qui tam, Coast attorney Deborah Trotter of the Merlin Law Group is counsel for plaintiff’s in three similar cases currently before the Court, Judge Senter presiding. Magistrate Judge Parker was assigned Lizana v State Farm and Magistrate Judge Walker the other two, Lebon v State Farm, and New Light Baptist Church v State Farm:
Defendant simultaneously filed three motions for protective order in response to Plaintiff’s Notices of 30(b)(6) Depositions, one of which was an expedited motion to quash and for protective order, for which the Lebon Court ordered Plaintiff on November 9, 2009, to Respond by 9:00am on November 10, 2009, during Hurricane Ida Warnings. As all three motions filed simultaneously by Defendant were similar in substance, context and argument, with the exception of the additional motion to quash in the Lebon case, Plaintiff’s counsel determined that in the interest of judicial economy and consistency that all should be responded to simultaneously and in combination. (Plaintiff’s Amended Response, Lizana)
Plaintiffs’ notices were filed simultaneously but State Farm’s motions were cleverly staggered:
October 30: Lizana, Lebon and New Light Baptist Church plaintiffs each file Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum
November 6: Lebon v State Farm: Motion to Expedite, Motion to Quash Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum think and Motion for Protective Order by State Farm
November 9: New Light Baptist Church v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm
November 11: Lizana v State Farm: MOTION for Protective Order Regarding Plaintiff’s Notice of 30(b)(6) IT Video Deposition and Issuance of Deposition Subpoena Duces Tecum by State Farm
I repeat, there was no justice, kindness or humility in Judge Walker’s orders nor any excuse for his conduct of the pre-trial discovery in Bossier…Give juries the evidence needed to make just decisions. Open court so that open court is a reality and not a lofty ideal.
“This is a public court…It belongs to the citizens. I believe in hearing everything in open court if I can.”
Federal District Judge L.T. Senter, Bossier v State Farm
Open court is not a place where Judge Senter presides. Instead, it is the envelope of the litigation process – the structural architecture holding together our system of justice for all.
Like the envelope of homes that stood against Katrina’s wind and water, not all damage to our system of justice is visible to the naked eye.
Neither was the damage to the Bossier’s home. Continuing with the analogy, tort reform and other system changes simply hide the cracks. What is needed is change that strengthens the structural architecture of the envelope, Open court – change that Judge Senter can make:
Modify the Mediation Order so that the period of mediation immediately follows the filing of a Complaint and Answer.
Improve the quality and oversight of the mediation process and require plaintiffs to attend a pre-mediation session conducted by the court that fully explains the process.
Require all motions for a protective order to fully comply with the Rules requiring specificity in the documentation of “good cause” and deny any that do not with prejudice.
Insist settlement conferences are documented with the technology used for video depositions and privately review the tapes before sealing.
At least Magistrate Judge Walker acknowledged State Farm failed to comply with the Court’s September 3rd Order with the Order for Sanctions he issued today in Bossier v State Farm.
Before the Court is Plaintiff’s motion for sanctions for Defendant’s failure to comply with court order of September 3, 2009, which was an agreed order prepared by counsel for the parties and submitted to the Court following a telephonic hearing on discovery matters held that same date. The order required production, “within 14 days from September 3, 2009,” of claims files from a specified area depicted on a map, also prepared and submitted by counsel as an exhibit to the agreed order entered by the Court. Plaintiff complains Defendant neither produced the documents nor communicated with his counsel regarding the files ordered produced by September 17, 2009.
Restating this text in terms that reflect reality, it should have read, “The order suggested production ‘within 14 days from September 3, 2009’ but gave Defendant State Farm leave to get it done whenever.”
Evidentiary disclosure is Michael Oher protecting the Rigsby qui tam.
Nonetheless, State Farm, Forensics, and Haag each recently took a shot – a strategic play intended to force Judge Senter to reveal his game plan.
On its face, Judge Senter’s focus on the McIntosh claim seems too narrow. In the context of evidentiary disclosure in qui tam litigation, however, it takes on a different look – one that makes evidence such as the McIntosh claim secondary to the scheme of the fraud. A Fifth Circuit decision explains:
We hold that to plead with particularity the circumstances constituting fraud for a False Claims Act § 3729(a)(1) claim, a relator’s complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.
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:
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:
State Farm mischaracterizes as a “heavy burden” the standard of review applicable to this petition. As Plaintiff’s objections to the Magistrate’s order relate to matters of law, and not fact, Plaintiff must only prove that said rulings are “contrary to law.” See, Bulley v. Fidelity Financial Services of Mississippi, Inc., 2000 WL 1349184 at *2 (S.D. Miss. 2000) (given lack of factual infirmities that would render non-dispositive order clearly erroneous, the standard is whether same is contrary to law). The unnecessarily restrictive and inconsistent order of the Magistrate Judge well satisfies Plaintiff’s obligation to establish same are “contrary to law.”
Intended as a review of action in multiple cases, too many games are being played in Southern District Federal Court and Keeping Score #3 will now be posted as a series. SLABBED begins the report asking…
Who has the balls?
For no good reason expressed, State Farm unilaterally rewrote Plaintiff’s discovery and produced only limited documents relating to claims…This arbitrary restriction was approved by the Magistrate Judge. Given that such discovery is not only allowed within the broad parameters of the Federal Rules of Civil Procedure but more specifically by the same Magistrate’s own orders in similar cases, the restriction in this case is clearly “contrary to law.”