Madison - St. Clair Record

Thursday, August 22, 2019

Defendants in Madison County bid rigging suit seek to exclude expert testimony

By Heather Isringhausen Gvillo | Jan 18, 2018

Defendants sued in a Madison County bid rigging suit filed motions to exclude controlled expert testimony, arguing that one expert is “woefully inadequate” and another intends to opine on damages which aren’t part of the class certification.

Defendant James Foley filed a motion to bar the plaintiffs’ disclosure of Victoria Harper as a controlled expert witness on Jan. 12 through attorney Ann Baron of Hyel Royster Voelker & Allen PC in Edwardsville.

The motion states that on Aug. 23, the court entered an order requiring the plaintiffs’ disclosure of expert witnesses by Dec. 20. The plaintiffs served their “expert witness designations” on Dec. 20, disclosing Dr. Carl Peters and Victoria Harper as controlled expert witnesses.

“Ms. Harper will testify as to her conclusions and opinions concerning the operation of the Madison County Tax sales in that the bid amounts and other information indicates collusion on the part of bidders present at the auction,” the disclosure states.

However, Foley argues that a report was not included for Harper as it was for Peters, and no specifics were provided. As a result, he alleges the plaintiffs’ expert witness disclosure fails to comply with Illinois Supreme Court Rule 213(f)(3), and Harper should be barred from testifying.

“Defendant maintains that the disclosure for Ms. Harper does not even set forth the topics she will testify about, let alone the gist of her testimony. There are no specifics. Merely stating that Ms. Harper will testify about the operation of the Madison County tax sales does not meet the requirements of Rule 213(f)(3) as this case is about the operation of the Madison County tax sales,” the motion states.

Several tax-buyer defendants filed a motion to exclude certain opinions of Peters on Jan. 11.

The motion states that the class action is only certified for liability, but the “majority of Dr. Peters’ opinions in his report pertain to the classwide damages as opposed to individual damages.”

“Given the Appellate Court order, all of Carl Peters’ opinions, other than those pertaining to the calculation of damages for individual property owners using individual proof should be excluded,” the motion states.

The defendants also requested an extension of the Feb. 1 expert deposition deadline and the Feb. 15 expert disclosure deadline.

An amended complaint was filed against the defendants on Sept. 25 through plaintiff attorney Nelson Mitten of St. Louis. The complaint was filed on behalf of a class of individuals who allege former Madison County Treasurer Fred Bathon arranged for tax buyers to charge interest at the maximum legal limit of 18 percent at auctions of delinquent property taxes from 2005 to 2008.

The plaintiffs allege Bathon conspired with each tax purchaser defendant to establish a “no trailing bid” policy, meaning the process required one-time, simultaneous bidding. Rather than allowing a series of bids, all bidders had to bid at once, with the auctioneer accepting the lowest bid that was heard.

The defendants allegedly then made an agreement with Bathon to bid the maximum of 18 percent in the simultaneous bidding.

Bathon was charged in February 2013 for violating the Sherman Antitrust Act. He pleaded guilty the same day. Defendants Scott McLean, Barrett Rochman and Joe Vassen also entered guilty pleas to federal antitrust charges in October 2013.

Madison County Circuit Court case number 13-L-276

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Heyl Royster Illinois Supreme Court Madison County Circuit Court