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Former federal judge acting as expert witness barred from invading current judge's province

By Record News | Mar 28, 2016


BENTON - U.S. District Judge Staci Yandle won’t let former federal judge Patrick Murphy invade her judicial province as an expert witness.

On March 15, Yandle barred Murphy from testifying at trial about the negligence of a lawyer or the interpretation of procedural rules.

She will let Murphy express other opinions on behalf of highway contractors E.T. Simonds Construction and Southern Illinois Asphalt.

Murphy charges $500 an hour, according to his deposition testimony.

The contractors face trial in July on a claim that they concealed available insurance coverage when they paid $1 million to settle a suit over a fatal accident.

The accident occurred in 2005, on Interstate 24 in Johnson County, when a vehicle carrying six Washington State residents left the road and rolled over.

Passenger Aleksey Turubchuk died. Driver Ludmila Nemtsova, two adults, and two minors sustained injuries.

In 2007, Turubchuk’s estate and the survivors sued E.T. Simonds and Southern Illinois Asphalt in district court.

The contractors had formed a joint venture to carry out a $12 million paving job for the Illinois Department of Transportation.

The suit alleged that the contractors neglected their duties to erect appropriate barricades and warn travelers of hazardous conditions.

Defense counsel Richard Green of Carbondale filed a counterclaim arguing that Nemtsova was impaired by fatigue, drove too fast, and drove on the shoulder.

The parties reached a settlement, and senior district judge William Stiehl dismissed the suit with prejudice in 2008.

Plaintiffs filed the current suit in 2012, claiming they settled for $1 million because the joint venture’s policy limited its liability to that amount.

They claimed Green should have disclosed that the contractors carried their own liability policies with much higher limits.

Stiehl presided over the case until he retired, and the case passed to district judge Nancy Rosenstengel.

In 2014, the contractors disclosed Murphy as an expert and filed his report.

Murphy wrote that in 2007, Seattle lawyer Komron Allahyari demanded that the insurer of the joint venture, Bituminous Insurance, pay $1 million within 30 days.

He wrote that Green acceded to the demand 30 days later.

“Mr. Green had no reason to believe there was other insurance available to cover what everyone now knows was in fact a joint venture,” Murphy wrote.

He wrote that he had no opinion whether there was additional coverage but that, “if so, it is an issue created by the plaintiffs’ lawyers for neglecting to do for their clients what they now assert Mr. Green should have done.”

“They should have satisfied themselves by submitting detailed interrogatories and taking depositions of those persons who might have knowledge of additional insurance,” he wrote.

He wrote that he held four opinions.

First, he wrote, plaintiff lawyers neglected their duty by submitting a demand with a time limit before conducting routine discovery.

Second, he wrote, Rule 26 of civil procedure did not require Green to conduct a thorough investigation as to what other policies might provide coverage.

“Third, it is not reasonable to rely only on information in initial disclosures to determine insurance coverage in a serious case,” he wrote.

Fourth, he wrote, plaintiff lawyers had ample time to satisfy themselves whether there was additional coverage even after they had agreed to the settlement.

Plaintiff counsel Jamie Boock, of Rossiter and Boock in Clayton, Mo., deposed Murphy on Dec. 23, 2014.

Murphy told Boock that Bill Knapp of Edwardsville, representing E.T. Simonds Construction, contacted him.

Boock asked who paid his fee. Murphy said, “The check was from Bituminous.”

Boock asked if he performed research into the issues in the case.

Murphy said he did not, except for a reference in the plaintiffs’ demand letter to a case that Illinois Supreme Court Chief Justice Rita Garman wrote.

“I was surprised at the opinion, frankly, because Rita Garman is a radical conservative insurance Justice whose husband worked for State Farm for many years and that’s the first opinion I had ever read by her that was remotely favorable to an injured plaintiff,” Murphy said.

Boock asked if Green did anything other than review the policy that was provided to him when the defendants retained him.

“There is nothing that I saw that would suggest that he did, so I take it that he didn’t,” Murphy said.

Boock asked if he believed that was a reasonable inquiry as required by Rule 26, and Murphy said, “I do…Initial disclosures set the groundwork, prepare the battlefield, so to speak, for what happens.

“It is anticipated by rule that they would be supplemented.

“Most experienced insurance lawyers would know that in the case of a joint venture, which you have here, you’re probably going to have to have a particular policy to cover that because otherwise, if you could engage your other policies by going into the joint venture, you would be putting those insurers to a risk they never anticipated or were charged a premium for.”

Boock asked Murphy if he researched case law or any standard for his opinion that plaintiffs’ lawyers neglected their duty to their clients, and Murphy said he didn’t.

Boock asked if it was based on his experience as a trial lawyer and as a judge.

“It is,” Murphy said. “This was not just negligent. This was gross negligence.”

Boock said, “On the part of Mr. Allahyari?”

Murphy said, “It was. It was…I think Mr. Green did what an insurance lawyer should do.”

He said the insurer didn’t want to settle the case.

“Some woman drove off the road at night,” Murphy said. “It’s not the toughest case in the world to defend but he knew if he was wrong he was subjecting his client to an excess verdict and he didn’t want to do that so he’s under pressure to do this right now. Got to do it, can’t wait.”

Boock asked if it appeared that Allahyari believed there was only a million in coverage, and Murphy said, “I don’t know what he believed.”

Murphy claimed additional coverage might have worked to Green’s advantage.

“I think if Green thought that he had information of other coverage to make it safe to try this case, he would have,” Murphy said.

“This is a Southern Illinois jury and he wouldn’t have been worried about his client and he would have said, you know what? Let me tell you about your million dollar demand. Come here and try it.”

On Jan. 21, 2015, Boock moved to strike Murphy’s opinion on Green’s compliance with Rule 26 and bar his testimony on his other opinions.

“Judge Murphy is testifying as to a question of law that is clearly reserved for this court,” Boock wrote.

“An expert’s interpretation of the scope and applicability of the federal rules is prohibited.

“Defendants are asking this court to substitute Mr. Murphy’s opinion as to the adequacy of the initial disclosure with that of this court.”

He wrote that Murphy’s other opinions depended on assumption that Green’s initial disclosures were appropriate.

Rosenstengel recused herself two days later, and the case passed to Yandle.

On March 15, Yandle ruled that Murphy’s opinion on Rule 26 invaded her province.

“Whether Green complied with Rule 26 is a question of law that is clearly reserved for this court,” Yandle wrote.

“Similarly, whether plaintiffs’ counsel’s actions were negligent is also an impermissible legal conclusion which Mr. Murphy may not proffer.”

She wrote that his other opinions were relevant to whether Allahyari’s conduct was the sole proximate cause of the damages that plaintiffs claim.

She has set trial to start July 11.

Murphy retired from the federal bench in 2013, and returned to private practice in Williamson County with wife Patricia Murphy.

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