Rigsbys respond to Forensics – an impermissible attempt to relitigate issues that were correctly decided in the first place

SLABBED provided the post-hearing briefs – Read ‘em while they’re hot – briefs filed by State Farm, Haag, Forensic, and Rigsbys post-hearing in the Rigsby qui tam – and linked the documents filed by the defendants following Judge Senter’s Order - Evideniary disclosure is Michael Oher of Rigsby qui tam.

Claiming the Forensic motion for clarification is an impermissible attempt to relitigate issues that were correctly decided in the first place, today the Rigsbys filed Relators’ Opposition to Motion of Forensic Analysis & Engineering Corporation for Clarification of Order Denying Motion for Summary Judgment.

Forensic’s Motion to Reconsider should be denied because it merely rehashes the arguments Forensic previously made without pointing to any newly discovered evidence or identifying any manifest error. See also… (“F.R.Civ.P. 59. . . is not a vehicle for a litigant to ask the Court to reconsider adverse decisions it is simply unwilling to accept.”)…

Forensic, like Haag, attempts to hang its hat on the date the McIntosh claim was paid – grasping at a straw man, no doubt encouraged by State Farm.

Forensic argues that, notwithstanding the evidence of its conspiracy, the Relators’ claims against it should be dismissed for the simple reason that Forensic’s involvement in the McIntosh claim began after the flood claim had already been paid. Motion to Reconsider at 3-4. This argument is wrong for several reasons.

First, because the Relators have established an agreement and overt acts performed in furtherance of that agreement, they do no not need to provide a specific instance of a false claim that resulted from the conspiracy…

Second, the timing of the McIntosh claim is irrelevant because if State Farm had accepted the conclusions in the Ford report, it would have been required to reimburse the federal government…

And third, even if Forensic’s liability were limited to conspiring to submit a “reverse false claim,” the conspiracy provisions of the False Claims Act encompass conspiracies to submit reverse false claims.

In a footnote to the third point, the Rigsbys note:  Forensic criticizes the Relators for not having previously responded to Forensic’s position that reverse false claims are not actionable under the conspiracy provisions of the False Claims Act…

… because Forensic first made this argument in its Post-Hearing Rebuttal Brief, docket entry [350] at 7-8, the Relators have been previously unable to respond.

The Rigsbys back up their contention: this Court correctly denied Forensic’s motions to dismiss the Relators’ claims.

Conspiracy to violate the False Claims Act requires: “(1) the existence of an unlawful agreement between defendants to get a false or fraudulent claim allowed or paid by the Government and (2) at least one act performed in furtherance of that agreement.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 193 (5th Cir. 2009) (internal citation omitted).

At the summary judgment stage the Relators need only provide evidence “that would allow a reasonable jury to find that these conditions have been met.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 343 (5th Cir. 2008). As explained more fully in the Relators’ Consolidated Post-Hearing Brief, after State Farm fired Forensic for the conclusions in Brian Ford’s report, Forensic agreed not only to change the conclusions in the McIntosh report but to also draft future engineering reports that would support State Farm’s efforts to mischaracterize wind damage as flood damage.See Relators’ Consolidated Post-Hearing Brief at 15-20, docket entry [348]. More specifically, Forensic agreed not to perform any engineering or wind analysis on damaged homes, to ignore eye witness accounts completely, and to only determine the predominant cause of damage rather than actually describing the amount of damage caused by wind and flood. Id. Forensic did this despite the fact that some of its employees recognized State Farm’s clear incentive to have engineering reports created that shifted the cost of insurance coverage to the federal government. Id.

The weekend is pressing and SLABBED will take another look at Forensic next week when looking behind door #2, the State Farm Bank.