So much for the idea that McIntosh would be the race horse of Katrina litigation. It may still be the pace horse for the Qui Tam derby; but for almost two years, IMO, it has been State Farm’s personal pack mule for motions designed to prevent either case from making it to the starting gate.
NOTICE of HEARINGS: FINAL PRETRIAL CONFERENCE set for 9/8/2008, 1:30 P.M., before District Judge L. T. Senter Jr., JURY TRIAL set for 10/6/2008, 10:00 A.M., before District Judge L. T. Senter Jr.
Needless to say, the homestretch is posing a challenge. It certainly is for non-lawyer me. SLABBED is more than a year younger than the case and there are currently 1298 docket entries to plow through. A good number of these entries will or seek to limit what the jury will be allowed to consider. In the legal world these limitations are the result of what is known as a motion in limine.
…a motion, made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial… Usually it is used to shield the jury from possibly inadmissible and harmful evidence.
However, the Complaint (October 06) and its amended version (May 07) alone reflect a very simple, straight-forward case; albeit, one that slowed by the burden of 1296 other docket entries. Believe it or not, the Complaint (amended) actually brought to mind the Rossmiller quote that I used in a recent post.
…tort law can and does impose liability for concurrent causes of damage, so limitations on that theory of causation, some will say, are inherently ambiguous.
Read the amended version, or re-read as the case may be, and see if you don’t agree - and if the irony of Scruggs proving Rossmiller’s point isn’t too much for you, check out my post. Understanding the case from that point forward is a matter of cross-referencing various motions and orders with the amended Complaint. A partial listing in suggested order is listed below:
- Order (April 08) disqualifying the Rigsby sisters and any related evidence not obtained through normal channels of discovery
- Order (April 08) granting and denying certain motions without prejudice – this is a big one that you can’t miss as it lists the status of previously filed motions including, but not limited to, the granting of the following:motions filed by Defendant State Farm:
(1) preclude evidence of media reports regarding the Rigsby sisters; (2) preclude the testimony of Kerri Rigsby (or any other witness) expressing a legal opinion or conclusion that fraud occurred in adjusting the plaintiffs’ claim; (3) the issue of punitive damages will be tried separately from the issue of actual damages, although plaintiffs may refer
to punitive damages in the voir dire examination of the potential jurors; (4) exclude testimony in the form of legal opinions or testimony concerning the proper interpretation of the insurance contract at issue in this case…[as]…the interpretation of the policy being a matter of law; (5) exclude from evidence reference to any grand jury proceedings or government investigation of the actions of State Farm following Hurricane Katrina; (6) exclude evidence concerning Mississippi Senate Concurrent Resolution 574 concerning the Rigsby sisters; and (7) establish that the plaintiffs’ receipt of flood insurance benefits constitutes a judicial admission that flood damage occurred and precludes the plaintiffs’ denying that at least the amount of damage represented by the flood insurance payment was caused by flooding
- Defendant’s motion to renew certain motions (August 08) – filed by State Farm last Friday relative to the Order listed above and separately filed motions in limine related to the following expert witnesses of the Plaintiff’s.
Ralph Sinno; Keith Blackwell; David Favre; Patrick Fitzpatrick, and Richard Henning
- Plantiff’s motions in limine (August 09)- also filed last Friday; three total:
(1) to preclude defendant’s counsel from mentioning or soliciting testimony about the McIntosh’s receipt of grant money for damage to their residence; (2) to preclude defendant’s counsel from commenting on the absence of certain witnesses from trial or their failure to testify; and (3) to preclude defendant’s counsel from any testimony, reference or mention that Cori and Kerri Rigsby “stole” documents while adjusting claims for State Farm and preclude defendants from elicting any testimony, reference, or mention of the disqualification of Plaintiff’s former counsel.
Defendant State Farm filed two new motions in limine on Tuesday (September 08)- evidence, once again, of the need for a refresher in How to Win Friends and Influence People - (1) to exclude Plaintiff’s undesignated expert witness Tim Ryals; and (2) to exclude or limit testimony of Plaintiff’s expert witness Ralph Sinno (deposition included as exhibit).
No doubt, you, too, see Mr. Sinno listed twice. It wasn’t until I’d completed the post Wind damage really sucks and linked the past post on Lisanby v USAA that I realized Mr. Sinno was the engineer who testified for the Lisanby’s in that case.
Little wonder State Farm wants to exclude his testimony. However, I simply don’t agree with their conclusion.
Dr. Sinno should be precluded from testifying at trial entirely because his opinion is irreconcilable with the Plaintiffs’ conclusive judicial admission of flood damage.
State Farm is basing that conclusion on this claim:
Dr. Sinno’s opinion, as expressed in his Rule 26 report and deposition, is that wind was the cause of all of the damage to Plaintiffs’ home. Yet, this opinion is flatly inconsistent with Plaintiffs’ judicial admission and impermissible under the Court’s ruling.
I don’t find Dr. Sinno’s opinion inconsistent at all. He is an engineer, a scientist, and in no way bound to tailor his professional opinion to the language of insurance policies.
If his professional opinion is inconsistent with the Court’s ruling as State Farm’s attorneys claim, Judge Senter will know that without their adamant insistence his thinking supports their position.
With two states of ambiguity, I wouldn’t guess what anyone is thinking.
Now about that mule – if you get the bit too tight…
Filed under: Anti Concurrent Clause, Bad Faith, Claims Dumping, Claims Handling, E.A. Renfroe, Flood Insurance, Insurance, Insurance Law, Katrina Insurance Cases, Legal Ethics, McIntosh v State Farm, Nowdoucit, Rigsby Sisters, State Farm | Tagged: E.A. Renfroe, McIntosh v State Farm, Rigsby Sisters, State Farm
Regarding expert testimony, CPAs are taught their professional opinions MUST be derived from the facts and circumstances without regard to the paymaster or legal strategy.
I suspect professional engineers have something similar in their professional literature.
You nailed it Nowdy on SF’s motion, Sinno’s expert opinion can not be clouded by the money taken by the McIntoshes.
It seems to me the flip side of State Farm ’s argument is they are allowed to get by with a bad claims adjustment despite the fact under NFIP they have a contractual obligation themselves to properly apportion damage. After all they wrote the check.
It is part of what makes the concept of double dipping so tenuous logically. Perhaps that is why only the Eastern District of Louisiana has bought into that line of reasoning.
sop
Sop, my point about Sinno was more about the science behind his position than the money.
actually, if we were chatting, you’d probably say “nowdy there you go with your nit picking semantics again” and you’d be right (and you know I don’t know how to make those yellow faces that wink and smile)
back to the point…what I’m saying is that wind suction really destroys the house…that’s where his mind is when he’s talking damage…wind sucks the envelop off and the structural integrity with it…so the house is destroyed to an engineer (if not the rest of us).
Water comes in and ruins the floors, rugs, furniture wallboard – whatever. An engineer is like an accountant in that regard – meaning he sets that aside. Two separate matters.
Example: As in the wind destroyed – and, oh by the way, you’re going to need to get new floors and have someone replace the wall board.
I bet you could tell him all day long that x% of the destruction was due to water and end up exactly where Scruggs did at the end of the deposition. Sinno would not give State Farm the answer they wanted and Scruggs said something like it was pointless to continue because there was no way to ask the question that would cause him to give them the answer they wanted.
Read the end, it’s really funny.
Also extremely important, McIntosh is central to the qui tam claim…sometime in the wee hours of the morning it all started to make sense in a different way. You’ll see that in what’s coming next.
It seems to me Nowdy these legal arguments can’t exist in isolation. I’m satisfied Sinno is sincere in his opinions.
According to the first engineering report done by Forensics there was an eye witness who will no doubt be testifying. I guess my original reply derives from my mind being made up on this case; the case facts speak for themselves.
The bottom floor of the residence was struck by debris from a house that was blown apart which in turn compromised it’s structural integrity. The river the McIntosh’s house is situated then flooded and made a mess of what was left.
The first post on this blog shows pictures of a house destroyed by what you later found was called “plow burst” that was then later flooded. The trees being snapped on both sides was key to seeing the wind damage there just as the house next door is key to understanding McIntosh.
Pressure is building on State Farm to settle this case. I’d love to see it come to trial so that all the facts are made part of the public record like Watkins in Oklahoma City.
sop
Me, too, Sop – plus somewhere out there is Proximo whose last words here were I WANNA KNOW.
You, as usual, have the advantage of seeing with your own eyes. The photographs copied in the complaint didn’t give me any real sense of place.
I think we’re saying the same thing – assuming I understand…am in a bit of a rush at this point.