Bum deal – a fresh look at the “common benefits” of mass claims

Comments – both on blog and in email contacts – about today’s post, Bum steer, have prompted a fresh look at the “common benefits” of mass claims.

However, less I be misunderstood,  it’s important to start this post recognizing the work of plaintiffs’ lawyers following Hurricane Katrina.  Working largely on a contingency fee basis, some at great personal sacrifice, they opened the door to justice for many who would have otherwise had both their damage claim and justice denied.  Admittedly, some eventually made a lot of money,particularly those who also invested a lot of money; others not so much; and. a few probably lost money; but, pay day, if it came at all, didn’t come until after a case had been decided or settled and then some.

Even then, the result did not always fully compensate plaintiffs for their loss or plaintiffs’ attorneys for their cost; but, individual cases are a different matter from a mass claim action – cases where a win can be a loss for everyone but the lead attorneys representing the class or mass of plaintiffs,  cases such as the one subject to this recent 5th Circuit opinion.

A federal appeals court…rejected a $21 million settlement of Hurricane Katrina damage claims that some residents had complained was unfair, and that one group said would have entitled residents and businesses to as little as $40 each.

“Hope is not an investment strategy;” yet, many were left with nothing else following Hurricane Katrina – $40, however, would hardly buy gas to drive a “chevy to the levee” and jump in.  Such hopeless results, no doubt, are behind the concerns SLABBED readers have expressed about the oil spill litigation before Judge Barbier. Continue reading “Bum deal – a fresh look at the “common benefits” of mass claims”

brief? Not if it’s 125 pages – a MRGO post-trial update

Post Trial Briefs–no Findings of Fact or Conclusions of Law are required to be filed and are optional. Briefs cannot exceed 125 pages…

  • Plaintiffs’ Post-Trial Memorandum shall be filed by June 18, 2009.
  • Defendants’ Post Trial Memorandum shall be filed by July 20, 2009.
  • Plaintiffs’ Reply Memorandum shall be filed by August 3, 2009.

With the issues Judge Duval wants briefed, 125 pages may be a bit of a squeeze, as these examples from the three-page list in his Order detailing the post-trial briefing schedule suggest:

  • Explain why some levees failed and others did not and how that supports the Plaintiffs’ theory of front side erosion and lateral subsidence.

SLABBED Daily – May 16-17 (weekend edition)

An earlier version of the weekend SLABBED Daily was an invitation to brunch; but, it went back in the oven.  Not to worry, here’s something to chew on – Corps picks 11 for levee work

The Army Corps of Engineers has awarded contracts to 11 companies — most of them local and all but two in Louisiana — that could share up to $500 million in levee construction work.

Each company is expected to be awarded between $10 million and $50 million of work under a program that allows the corps to prequalify contractors it can later tap when work becomes available. The companies are all designated as small or disadvantaged…

The contracts will be for heavy construction work for levees; floodwalls; pump station construction or enlargement; road, culvert and canal construction or repair; concrete bridge work; earthen channel enlargement and concrete lining; concrete or stone armoring; and installing foreshore protection in water bodies in front of levees…

The issue of contractor liability is what made this story a brunch-buster – and what links it to MRGO and the Responders re: Katrina Consolidated Levee Breach Litigation.

Early last week (May 11) the MRGO Plaintiffs filed notice of Appeal of the Court’s decision regarding WGI, a contractor who worked on the levees prior to Katrina. Continue reading “SLABBED Daily – May 16-17 (weekend edition)”

SLABBED Daily – May 11 (O’Keefe, Rigsby qui tam, MRGO)

The more “off” than “on” internet access from Oxford accounts for the absence of SLABBED Daily over the weekend – and the almost constant rain for my late departure from Greenwood where I’m writing today before heading home.

Sop picked up the smoking O’Keefe response. It’s even hotter when read with the O’keefe’s amended complaint and illuminating deposition of Robert Tripple, State Farm senior vice-president for this region.

How much hotter? Well, hot enough that State Farm’s opposition to the O’Keefe’s amended complaint addresses little else but the eternally claimed “improperly dominated [sic] State Farm Mutual”.

All that heat sheds light on the Rigsbys’ qui tam complaint.  Now do you see it? Speaking of light, I read an interesting case summary that made me think of State Farm’s recent motions to exclude testimony of all of the Rigsbys’ expert witnesses – State Farm’s Appeal of the decision in a Texas case,  Rodriquez v State Farm.

See if you don’t agree that this State Farm claim about Dr. Sinno is similar to the claim State Farm made about the expert in the Rodriquez case:

State Farm Motion to exclude testimony of MSU professor Ralph Sinno:

He [Dr. Sinno] repeatedly admits that his opinion is based on “guesswork”and “speculation”.

State Farm Appeal of Rodriquez v State Farm:

State Farm argues that Dabney’s testimony is so unreliable that even Dabney himself refers to his opinions as a “wild ass guess”.

Here’s how the Court ruled on the point in the Appeal: Continue reading “SLABBED Daily – May 11 (O’Keefe, Rigsby qui tam, MRGO)”

SLABBED Daily – May 6

In case any of you think you must have missed the May 5th SLABBED Daily,  you did not.  I did – not by intent, mind you.  It was almost May 6th when I checked-in the hotel where I’m staying on the first leg of my week-long working tour of the State.

First, a quick update on MRGO and Rigsby Qui Tam:

Defendant USA continues to present the defense of the Corps of Engineers otherwise indefensible role in the flooding of New Orleans – an uneventful presentation according to the Docket.

I’ve added a Minute Entry from the Docket to the MRGO case file – but just yesterday’s a it will take a while to catch up as the clerk entered these in batches over a week after the start of the trial.   btw, that case file is under legal on the right sidebar.

Depositions continue in the Rigsby Qui Tam – and, this time, the Rigsbys are taking, not giving!  Forensic’s Jack Kelly is today in Laurel and a new Docket notice indicates Brian Ford’s deposition will be taken Friday in Atlanta.

Sop and I find ourselves increasingly interested in cases involving the use of an engineer. Flint v Nationwide is a particularly interesting one as the Plaintiff’s complaint identifies Nationwide’s contracting engineering firm as one

not qualified to do business in Mississippi, but has and is doing business in Mississippi, and who has committed a tort in whole or in part in this state against the Plaintiffs. Continue reading “SLABBED Daily – May 6”

SLABBED Daily – May 4 (MRGO)

Before this week is over, I will have  worked and blogged my way from one end of the State to the other and seen my youngest child graduate from college.  However, this very late edition of Slabbed Daily is the result of my need to pull my thoughts together, not my clothes for the week – thoughts about the Katrina Canal Breaches Consolidated Litigation and the case currently in trial known as MRGO, Robinson v Corps of Engineers.

It was subsequently determined by the en banc court of the Eastern District of Louisiana that in order to avoid conflicting decisions among the various sections of the Court, the proper approach would be to consolidate all such filings for purposes of pretrial discovery and motion practice. As such, what is now captioned “In re: Katrina Canal Breaches Consolidated Litigation,” C.A. No. 05-4182, has become the umbrella for all cases which concern damages caused by flooding as a result of breaches or overtopping in the areas of the 17th Street Canal, the London Avenue Canal, the Industrial Canal, and the Mississippi Gulf River Outlet (“MRGO”).

case-fileAll totaled, 4909 cases were consolidated as a result of the September 19, 2005, well reasoned decision to avoid conflicting decisions.  With an attorney for the plantiff and another representing the defendant, these 4909 cases required a minimum of 9,818 attorneys; yet, even six months later, February 16, 2006, Martindale.com reportedly listed only 5,352 licensed attorneys practicing in New Orleans. Continue reading “SLABBED Daily – May 4 (MRGO)”

SLABBED Daily – April 30 (update:Rigsby qui tam, MRGO)

I could offer the reason this second evening edition of the SLABBED Daily is that I was waiting on Judge Senter’s bit of housekeeping news:

TEXT ONLY ORDER finding as moot Defendant Exponent, Inc.’s  Motion to Dismiss; finding as moot Defendant Jade Engineering’s  Motion to Dismiss for Lack of Jurisdiction; and finding as moot Defendant Jade Engineering’s Motion to Dismiss. These motions are rendered moot in light of the Court’s  order dismissing these two defendants, among others. NO FURTHER WRITTEN ORDER SHALL ISSUE.

The truth, I’m sorry to say, is that I just got so caught up in MRGO that I forgot!  I don’t expect the qui tam lawyers to forget about the two events noticed yesterday – their upcoming deposition of Lecky King on May 5 and Jack Ford’s the following day.

However, according to the Notice of Supplemental Production also on the Docket yesterday, State Farm had a little trouble remembering important things, too.

State Farm has so far been unable to confirm to its satisfaction whether exhibit 7 to the April 30 and May 1, 2007 Cori and Kerri Rigsby deposition transcripts in McIntosh is still subject to restrictions. For that reason, out of abundance of caution, Exhibit 7 to those depositions is not being produced at this time.

Otherwise, the included a list of 16 items produced and delivered to the attorneys for the Rigsby sisters and this snark:

Nothing in this submission constitutes consent by State Farm to the Rigsbys Continue reading “SLABBED Daily – April 30 (update:Rigsby qui tam, MRGO)”

MRGO – USA signed waiver of rights to seek disqualification of counsel

Much to my amazement, the USA actually included a copy of the fully executed Joint Defense and Cost Share Agreement with the Motion filed by USA attorney Robin Smith in apparent violation of the Agreement  – go figure!

SLABBED reported the USA motion here and the Plaintiff’s response in opposition here .

One of us would read the Agreement aloud if wordpress offered that feature.  Instead,below you will find selected, relevant sections from and a link to the fully executed Agreement (h/t Defendant USA) and some of Judge Duval’s “make-my-day” comments from the official transcript (h/t Robinson Plaintiffs).

Joint Defense and Cost Share Agreement

This Joint Defense and Cost Share Agreement (“Agreement”) is entered into by and among the United States of America (United States), Board of Commissioners of the Orleans Parish Levee District, Sewerage and Water Board of New Orleans, Board of Commissioners of the East Jefferson Levee District, State of Louisiana (Department of Transportation and Development), The Parish of Jefferson, and Board of Commissioners for the. Port of New Orleans acting through and upon the advice of their respective counsel…

The Agreement applies to Re Katrina Canal Breeches Consolidated Litigation (Levee), which is pending, in the United States District Court for the Eastern District of Louisiana as Civil Action No. 05-4182 (the “Federal Litigation”), and various actions pending in the courts of the State of Louisiana seeking similar relief (the “State Litigation”) (collectively referred to as “the Litigation”).

Recognizing the need to balance the benefits of consolidating the litigation with the potential for conflicting interests, provisions were added that required all parties to waiver rights to seek disqualification, including, but not limited to Sections 11, 13, and 20.

Continue reading “MRGO – USA signed waiver of rights to seek disqualification of counsel”

USA’s Phantom conflict evokes spirited response from MRGO Plaintiffs

Uncle Sam embarrassed. MRGO Plaintiffs retain outside ethics counsel.
Uncle Sam embarrassed? MRGO Plaintiffs retain outside ethics counsel.

Without warning, at approximately 5:15 p.m. Tuesday, April 28, 2009, and during the Government’s cross examination of a witness that Mr. Andry had just finished examining on direct, Mr. Andry and the Court were advised by Robin Smith of the filing of a Motion to Disqualify Mr. Andry and Ms. Sherman from this matter.

Robin Smith represented to the Court that the USA had not yet “ascertained” the facts, but was filing a motion in the event of a “potential” conflict of interest…Mr. Smith, as an officer of this Court, specifically declared,”We became aware of this conflict or potential conflict late last week and we sought guidance from our professional advisory office. We just received their report today advising us to go ahead and file this. It’s an issue for the Court to look into. It’s not something for us to determine. We can’t do it. We don’t know the facts. Opposition to USA’s Motion to Show Cause Why Plaintiffs’ Attorneys…Should not be Disqualified(emphasis in document)

Yesterday must have been Mr. Smith’s day to specifically declare.  According to the attached Affidavit of attorney Elwood C. Stevens, Jr., his brief conversation with USA attorney Smith ended with Smith specifically declaring:

…he was tired of plaintiffs’ counsel offering him ethics advice and he declined to withdraw the motion.

Likely, Plaintiffs’ counsel was tired of the need to offer ethics advice to an attorney representing our government.  Uncle Sam was probably embarrassed the Plaintiffs had to retain an outside  Ethics expert but they did and the affidavit of attorney Basile Uddo is included, too, as are Continue reading “USA’s Phantom conflict evokes spirited response from MRGO Plaintiffs”

MRGO Update – April 29

Speaking of pellucid. The MRGO trial is starting to remind me of driving my kids to summer camp – He touched me… Did not… Yes, you did – you put your foot on my side… Did not – if I’d touched you, it would have felt like this… Waaaaaaa – he hit me.

Yesterday’s report introduced the Plaintiff’s motion to compel discovery of the calculations used by the USA’s witness Bruce Ebersol.

During the day, the USA filed it’s Did so…You did not…formally known as a Notice of Document Production

The United States provided those calculations to the Plaintiffs by electronic mail on April 27, 2009. Those materials are now being produced with Bates-stamped numbers…(emphasis added)

In that context a motion to strike seems literal and today Plaintiffs filed a… stop!…look what he’s done now…Motion to Strike Lay Witness Pete Luisa from Defendant’s Witness List

…In MRGO, the parties were obligated to update their witness list on the 20th day of each month “to facilitate regular and ongoing preparation for common liability issues trials.”  As such, the defendant United States has had over twenty-five (25) opportunities since the March 1, 2007…to identify Mr. Luisa prior to the filing of its final witness list…The first time the defendant identified Mr. Luisa was on the March 27, 2009 United States’s Final Witness List of Witnesses…

The subject matter for which Mr. Luisa was identified to address was “how the Corps determines its annual funding recommendations for projects such as the LPVHPP”…without any opportunity to depose the witness, Plaintiffs are suspect of the relevance of Mr. Luisa’s testimony to the matters at issue in this trial… Continue reading “MRGO Update – April 29”