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? 

Surely, not!  However, I’m not certain the Court is reading what Counsel for Mrs. Politz submits or, if reading, doing so with an open mind:

Allowing Nationwide’s expert Dr. Webb to provide a medical diagnosis, while at the same time prohibiting Mrs. Politz from offering an expert to provide a medical diagnosis, squarely places Mrs. Politz in a severely prejudicial position from that of Nationwide.  Nationwide claims that Mrs. Politz always had the information about her mental condition, from a medical standpoint, while it did not.

This is not true, as Mrs. Politz is not a medical doctor and had never previously been diagnosed by a mental health specialist, specifically with regard to her feelings of depression, stress and anxiety in the wake of Hurricane Katrina and Nationwide’s denial of her claim. Further, as previously pointed out to the Court, Mrs. Politz has gone through an awful lot since this litigation began, including several moves, the death of her husband, and her own open heart surgery. She additionally comes from a generation which stigmatizes mental health issues, making her doubly wary of seeking any such diagnoses…

The purpose of Rule 35 is to put the defense on equal footing with the Plaintiff. See Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 196, 200 (N.D. Tex. 1999). The denial of Plaintiff’s Motion for Leave to Designate Dr. Ginzburg as an expert witness does exactly the opposite.

A footnote in the motion notes Counsel’s effort to communicate with Counsel for Nationwide and related email correspondence, Exhibits B and C, documents Plaintiff’s Counsel provided a copy of the results of Mrs. Politz’s exam to Nationwide despite the Company’s expressed lack of interest:

…knowing Nationwide’s penchant for attempting to manufacture prejudice to put Plaintiff in a bad light. See Exhibit “D.” In fact, that appears to be Nationwide’s primary strategy at this point in the litigation.

From the outside looking in, “Nationwide’s primary strategy” has also included an attempt to put Plaintiff’s Counsel in a bad light – one that suggests he has not communicated appropriately and/or effectively while the truth is much to the contrary.

Mr. Carter communicates well – in Spanish, English, German and Japanese – and his representation of Mrs. Politz has been, in a word,  gallant.

Consequently, it is no surprise that Mrs. Politz mental health exam was conducted by a doctor whose expertise is beyond dispute.

Harold M. Ginzburg, M.D., J.D., M.P.H…is currently in private practice…primarily …evaluating and treating patients who have developed psychiatric or neuropsychiatric problems as a result of physical injury, chronic illness, or traumatic incidents.

He was an active duty commissioned officer in the United States Navy and United States Public Health Service for more than two decades…His last career Federal government assignment was as the Senior Medical Consultant, Office of Emergency Preparedness, Office of the Assistant Secretary for Health, the United States Public Health Service. He was tasked with developing emergency medical and mental health response programs for the Disaster Medical Assistance Teams (DMATs) sponsored by the National Disaster Medical System (NDMS).

Dr. Ginzburg received his baccalaureate and medical school education at Boston University. He did his fellowship in Psychiatry and received a Master’s degree in Public Health at the Johns Hopkins School of Hygiene and Public Health, Baltimore, Maryland. He obtained his law degree from Catholic University, Washington, D.C, and is currently a member of the Maryland Bar and licensed to practice medicine in a number of states.

He is a Diplomate of the American Board of Psychiatry and Neurology, and is a Distinguished Life Fellow of the American Psychiatric Association, a Fellow of the American College of Preventive Medicine and was a fellow of the Infectious Disease Society of America. He is currently a Clinical Professor, Department of Psychiatry and Neurology, Tulane University Medical Center, and a Clinical Professor, Department of Psychiatry, Louisiana State University Health Sciences Centel’ School of Medicine in New Orleans. He is also an Adjunct Professor of Psychiatry, Uniformed Services University of the Health Sciences, School of Medicine, Bethesda, Maryland.

I don’t know if Dr. Ginzberg was on the Student Activities Board while he was a medical student – only that I read his 31-page curriculum vita, attached to the Politz motion as Exhibit A, and saw no mention.

Could that be the reason Judge Walker turned the requested Motion hearing into a Settlement Conference? You just never know.  In Katrina litigation, the unusual is the usual and most anything can happen.

6 thoughts on “Judge Walker orders ANOTHER settlement conference in Politz v Nationwide”

  1. You should have ended that post, “Most anything can happen in the magic jurisdiction that is Judge Walker’s courtroom.”

    His rulings in this case are a joke. Shame on him for crushing an elderly widow lady, a special place in hell awaits him……

    sop

  2. Settlement Conferences in Federal Court cases, particularly jury cases, are a total waste of time. And i suspect that in the Politz case, something “sinister” is behind the sua sponte scheduling of a “Settlement Conference”, which will be presided over by a Federal Magistrate (a “wanna-be” Judge, who owes his livelihood to the District Judges). You can bet that EVERY SIGNIFICANT WORD uttered in the presence of the Magistrate will be reported by the Magistrate to Judge Senter. The Magistrate can also be counted on to “smear” the lawyers for at least one party with an “he (or she) is being unreasonable” brush, which will “poison” the Judge towards that lawyer and his client if the case ever proceeds to trial. (Judges don’t have to “work” when cases settle; actually trying a case, particularly a jury case, means the Judge and his or her Staff have to WORK). Also, if you have ever participated in a Settlement Conference before a Federal Magistrate, then you have no doubt been AMAZED how quickly the discussion degererated from intellectually discussing the merits or demerits of each party’s case, into what I call “a number-driven” discussion. All it takes to settle cases is MONEY or one party’s willingness to take LESS money. For instance: You have a case which the Magistrate has gratuitously labelled as “weak” (never mind that you have the right to trial by jury, which could care less what a “wanna-be” Judge Federal Magistrate thinks). which it will cost @ $25,000 to try, plus the cost of expert witnesses. The other side is offering $35,000. YOU will be tarred with the “unreasonable” brush if you refuse to accept $35,000. Pardon me if my years of litigation experience, and personal experience with our System of “Injustice” since KATRINA has made me more than a little cynical. WHERE IS THE GODDAMNED FBI?

  3. This case illustrates the pratfalls/risk of litigating in federal court, at least the Southenr District of Mississippi and Eastern District of Louisiana. If you can avoid the non-sensical, baseless legal rulings and actually obtain a significant judgment, you have the absolute worst circuit court waiting for you here in New Orleans. Keep in mind that between a trial and appeals, your clients are looking at least a year maybe two. That is 2 more years on top of the 5 they have waited.

    As far as the settlement conferences– they are an opportunity for the magistrate to tell you nd your clients your evaluations are way off and you need to settle for peanuts. The following is a true story involving our good friend Mag. Shushan:

    Clients’ home was in St. Bernard at the time Kurricane Katrina struck and sustained significant roof damage to due to wind. State Farm of course paid for the roof, but nothing else. During the deposition of a State Farm trainer (someone who trains adjusters), the trainer disclosed what became known as the “St. Bernard Protocol.” The St. Bernard Protocol was an exterior only loss adjustment practice State Farm implemented specific to St. Bernard Parish. The idea was “pay for the roof or any other wind damage and go back later for a full blown loss adjustment.” The problem as we learned in this particular case, as well as the 5 or 6 cases that followed, was that State Farm simply closed the files w/o doing a formal loss adjustment. The trainer admitted the claim was handled improperly.

    Anyway, we go to the settlement conference with Mag. Shushan and we were at $750,000.00 (way too high, but we knew State Farm would pay a reasonable amount to settle and wanted to get to that number.) State Farm was at $75,000.00. Mag. Shushan did not want to hear any of the facts and proceeded to tell us we were crazy. In turn, we ended the settlement conference and continued workign towards trial. A couple of days later, mag. Shushan called us back with more authority eventually getting up to $175,000.00. We continued to reject the $175,000.00 knowing full well the case was worth between $250,000.00 and $300.00 for settlement. After conveying the $175,000.00 and having us reject it, Mag. Shushan said “this is a lot money for people like them”, meaning our clients. To which, the response was “what do you mean people like them”? MAg. Shushan then said “You know what I mean”. Our next reponse was “Yes its a good bit of meny, but our job as lawyers is to advise as to fair value and $175,000.00 is not fair value.”

    About 30 minutes after our conversation, the district court judge, Judge Berrigan, issued an ruling in favor of State Farm on major legal issues and at the very end dropping a comment that said “I find the claim for penalties to be dubious at best.” Really???? Even after State Farm’s own employee said the claim was handled poorly?

    Who do you think made a phone call to the ditrict court judge and said we were being greedy, no good trial lawyers? Hmmm…..

    The above is just a taste of what we have experience during the almost 4 years since Katrina practically destroyed southeast Louisiana.

  4. Sadly we’ve heard the same story many times off blog involving several different judges most of whom were insurance defense lawyers prior to buying their way (the “respectable” way of course) onto the bench.

    And in grade school and high school civics children are taught about our justice system being equal. Some people are evidently more equal than others – those from “The Parish” evidently need to apply…

    sop

  5. It’s sad but true that we also have teach our children “life is not always fair” – and, even sadder that more has been done to destroy the areas hit by Katrina after the storm, much of it in the name of “justice”.

  6. One can certainly discern that both Ashton and NBR have been “victims” themselves in a sense. What a shocking insult to have a Magistrate refer to your client as “THOSE PEOPLE.” “…That’s alot of money for THOSE PEOPLE….” It’s NOT ENOUGH if it doesn’t make them WHOLE AGAIN….DUH! NOTHING WILL MAKE THEM WHOLE AGAIN OR UNSCATHED FROM KATRINA….ALL THE SYSTEM CAN DO IS WHAT IS RIGHT AND ENSURE THAT THEY GET THEIR INS. BENEFITS AS QUICKLYAS POSSIBLE…not let their case languish in law offices and work their way into mediator and magistrate appt. books (WE ALL KNOW THEY DON’T WORK FOR FREE!!!). Further, I don’t know (being in Tampa, FL) whether Mag. Shushan is a man or woman but, irregardless, if I were the client in this specific case and was privy to his/her remark, I’d certainly report him/her to the appropriate Judicial Qualifications Committee. It’s simply AMAZING how quickly SOME PEOPLE forget WHERE THEY CAME FROM. There was a day, Magistrate SHOESHINE, excuse me, Shushan, that you were a mere sophomore in college – AGHAST!! – b4 you even made it to law school !! REMEMBER THAT ?? Oh my goodness, you were a MERE MORTAL in a prior life !! You don’t remember that? And to think now you’ve come SO FAR in your intelligence that you can opine that $175,000 is “…ALOT OF MONEY FOR THOSE PEOPLE.” Is it enough to retore their lives to the way it was prior to Katrina AFTER the deduction of attorney’s fees (that they were FORCED to incur), costs, expert fees, etc., Magistrate Shoeshine? You have no idea do you? Of course you don’t – but you know how much you’re invoice is going to be in this case don’t you? THAT’S “ALOT OF MONEY” FOR THE DISSERVICE YOU PROVIDED!! Again, if I was the client and caught wind of your derogatory remarks, I’d have more than an ins. claim going on and you’d have a valid (and hopefully validated) discrimination complaint on your judicial record. And you’re SUPPOSED to be open minded !!!! It appears obvious that Mag. Shoeshine may have thought about his/her thoughtless comment since it took a mere 1/2 hr. for Jdg. Berrigaan to issue a ruling on major legal issues in State Farm’s favor and, as stated above, even adding [in an equally familiar humanitarian attitude]:

    “…I find the claim for penalties to be dubious at best.

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