Madison - St. Clair Record

Monday, December 9, 2019

Herndon's pre-trial rulings in Hale v. State Farm lean heavily in favor of plaintiff; Chief Justice Karmeier in crosshairs


By The Madison County Record | Aug 28, 2018

Law money 10

EAST ST. LOUIS – Plaintiffs suing State Farm for $10 billion won eight straight decisions on expert testimony from U.S. District Judge David Herndon on Aug. 21, two weeks ahead of trial. 

Herndon granted three motions from plaintiffs to exclude experts for State Farm; he denied five motions from State Farm to exclude experts for plaintiffs; he separately granted plaintiffs 22 of 32 motions they filed to limit testimony; he granted State Farm four of 16. 

He deferred until trial a decision on whether plaintiffs can call Illinois Supreme Court Chief Justice Lloyd Karmeier “corrupt.” 


He ruled that State Farm couldn’t call character witnesses for Karmeier because plaintiffs haven’t attacked his character.

He barred testimony about a campaign against Karmeier’s retention in 2014, when plaintiffs’ counsel paid for messages attacking his character. 

He barred any reference to the decision of voters to retain Karmeier

He also barred testimony about money that plaintiffs’ counsel raised for Karmeier’s opponent, Gordon Maag, in 2004. 

Lead plaintiff Mark Hale of New York State sued State Farm in 2012. 

Hale claims State Farm secured Karmeier’s election in order to overturn a billion-dollar class action judgment in Avery v. State Farm, from Williamson County.

Hale claims Karmeier should have recused himself from review of the judgment. 

The class seeks to recover the judgment with 19 years of interest and triple damages under civil provisions of federal racketeering law.

Herndon plans a trial to begin Sept. 4 and lasting at least through October.

His order on experts began with rejection of State Farm expert Sheila O’Brien, a former First District appellate court judge. 

She would have testified about judicial campaigns and elections, standards for recusal, and the Supreme Court’s decision. She also would have testified that she found no basis in the record to conclude that recusal by Karmeier would have changed the outcome. 

“Sometimes debatable conclusions sink to the level of rank speculation, as in this instance,” Herndon wrote. 

“Justice O’Brien mixes in some opinion testimony without telling us the reason for her opinion. 

“The witness leaves the jury with only the bottom line and supplies nothing of value upon which the jury can assess the opinion.” 

Next, he excluded State Farm expert Michael Reagan, a lawyer in Ottawa, who found it unlikely that Karmeier would have been able to sway opinions of fellow Justices. 

Reagan would have testified that once the Court decided to hear the appeal, it was likely that some aspect of the lower court’s decision would be reversed. 

“Missing from Reagan’s report is any documentation related to statistical analysis for his various conclusions and opinions about the Illinois Supreme Court and the occupants of that bench,” Herndon wrote. 

“Without a reliable methodology, his opinions are not reliable and will not provide any benefit to the jury.” 

He wrote that a judge from the Boston Legal television series who would summarize Reagan’s report and deposition as “jibber jabber.” 

Next, he excluded State Farm expert Bruce Dubinsky, a fraud examiner who would have rebutted plaintiff expert Thomas Myers on damages. 

Herndon wrote that Dubinsky’s opinions were not based on sufficient facts or data and were not the product of reliable methods or principles. 

Herndon then took up State Farm’s motions to exclude Hale’s experts. 

He denied exclusion of Joanna Shepherd, an Emory University law professor who will testify about the influence of campaign funds on judicial decisions. 

“After reviewing her report, it is clear that Professor Shepherd is not making up her conclusions,” Herndon wrote. 

He wrote that she explained State Farm’s substantial contributions, Karmeier’s possible knowledge of them, their timing, and State Farm’s misrepresentations about its involvement and that she explained that these factors converge to raise serious concerns about Karmeier’s impartiality. 

He wrote that State Farm counsel Michael Kenny conducted an improper examination of her, suggesting that she didn’t read the case. 

“The court will not tolerate this type of ‘gotcha’ question, especially when based on a false premise,” he wrote. 

Next, he approved Richard Means of Public Access Project, which he described as a “public interest law firm promoting democracy in Illinois.” 

Herndon quoted from Means’s report that contributions to issue advocacy entities and their timing compelled a conclusion that Karmeier’s campaign should have reported them as contributions in kind. 

“Means explained that the evidence shows that the acts claimed to be campaign finance law violations were performed intentionally with the purpose of evading disclosure requirements,” Herndon wrote. 

“Means’ extensive experience and first hand knowledge of Illinois campaign finance law provides sufficient basis for him to offer his opinions.” 

Herndon also approved Kent Redfield, political studies professor at the University of Illinois-Springfield. 

He quoted from Redfield’s report that soliciting contributions with an understanding that the funds would be contributed to or spent on behalf of a specific candidate violates Illinois law. 

“His testimony is clearly relevant to provide context to State Farm’s alleged efforts to conceal its contributions supporting the Karmeier campaign,” Herndon wrote. 

Herndon approved Fordham Law School professor Bruce Green. 

He quoted from Green’s report that State Farm’s outside counsel knew the general extent of State Farm’s secret support. He also quoted from the report that a duty of candor obligated counsel to bring relevant facts to the Supreme Court. 

“Professor Green’s reports will help the jury assess matters of professional responsibility, specifically how a lawyer’s duties to a court limit what a lawyer may do to advance a client’s interest,” he wrote. 

By separate order he denied a motion from State Farm to exclude Arizona lawyer Mark Harrison as an expert in ethics. 

Herndon identified Harrison as former chairman of Justice at Stake, describing it as “a national non-profit organization dedicated to preserving fair and impartial courts.” 

He quoted from Harrison’s report that Karmeier’s participation tainted the decision, denied plaintiffs due process, and deprived them of an impartial court. 

“Harrison pronounces in detail the ethical provisions he found relevant given the facts that he relied upon as well as the pertinent case law,” he wrote. 

“The facts he relies on are, by the court’s finding, sufficient and reliable.” 

In his order on testimony, he banned references to Karmeier’s retention in 2014.

He wrote that Karmeier “will be allowed to testify that he is currently a justice sitting on the Illinois Supreme Court, the exact wording not critical.” 

“However, any discussions about running for retention, having a second campaign to remain in office or anything about how he came to be in the same position more than ten years after the first election will not be allowed.” 

He barred evidence of Karmeier’s good character, skills, or abilities. 

“From the court’s reading of the record, the plaintiffs have not attacked the character of Justice Karmeier except to the extent that plaintiffs contend that he should have recused from the case,” Herndon wrote. 

“This is not a personal attack on Justice Karmeier’s character.” 

He ruled that plaintiffs could ask him leading questions. 

He barred evidence of the vote count in the Supreme Court. 

All six Justices reversed the judgment, with four completely closing the case and two arguing that the trial judge could certify subclasses.

Herndon barred references to campaign contributions of plaintiffs’ counsel.

“The only contributions material and relevant in this case are those of the defendants and its affiliates,” he wrote. 

He barred any arguments that defendants engaged in free speech in 2004.     

He denied two plaintiff motions. 

Herndon ruled that State Farm could refer to investigators Doug Wojcieszak and Tom Denton attributing the same contributions to Philip Morris

He wrote that State Farm asserted that Wojcieszak worked for counsel in a Philip Morris case to show that just under $4 million of Karmeier donations came directly or indirectly through Philip Morris.

He wrote that counsel in the State Farm case hired Wojcieszak, who produced a paper attributing the same contributions to State Farm. 

“Clearly, if what is asserted by defendants is true, or the evidence is such that a jury can reasonably infer that it is true, such evidence is highly relevant in this case,” Herndon wrote. 

“The proposed evidence is also clearly more probative than prejudicial and highly relevant because it gives some insight into the credibility of Wojcieszak.” 

He denied a motion to bar evidence that companies other than State Farm donated to the U.S. Chamber of Commerce or its Institute for Legal Reform. (The Madison-St. Clair Record is owned by the U.S. Chamber Institute for Legal Reform). 

He wrote that the evidence might be relevant to the issue of whether State Farm affiliates contributed money to the Chamber and the Institute for the purpose of having it sent to the Karmeier campaign in one form or another. 

He wrote that in order to prevent speculation and allow the jury to decide a factual issue, the Chamber, the Institute, and the other companies must reveal contributor names, dates and amounts. 

Herndon also granted motions to admit letters that second defendant Ed Murnane sent to third defendant William Shepherd.  

Plaintiffs claim they conspired with State Farm, Murnane as director of Illinois Civil Justice League and Shepherd as a State Farm employee. 

Herndon took up State Farm’s motions, first granting one to bar testimony and evidence about triple damages or calculation of interest. 

He partially granted a motion to exclude references by counsel or witnesses to Karmeier being corrupt, bribed, or entering a quid pro quo arrangement. 

He wrote that it would be improper and prejudicial, “unless prior to doing so, plaintiffs demonstrate to this court that there is sufficient evidence to draw a reasonable inference of such accusations, and offer exactly what that evidence is.” 

“This court will not go so far as to preclude plaintiffs from arguing, if they can put forth a good faith argument, that there is evidence in this case sufficient to draw a reasonable inference that Justice Karmeier conspired with others in violation of the RICO Act,” he wrote. 

He barred references to money laundering. 

He barred three areas of evidence beyond Hale’s answers to interrogatories. 

“State Farm is very specific to the evidence it does not feel would be fair to present in light of plaintiffs’ failure to provide specific evidence in response to those questions to discover the evidence,” he wrote. 

First, he excluded evidence that Karmeier influenced any other Justice. 

Second, he excluded evidence that State Farm deceived any Justice in its appeal brief in 2005 or a brief it filed when plaintiffs tried to reopen the case in 2011. 

Third, he excluded evidence that State Farm made false statements or omissions in the briefs other than those plaintiffs identified in their response. 

He granted a motion to bar references to testimony he excluded. 

He denied more of State Farm’s motions than he granted. 

He denied one to preclude testimony about election law violations. 

He found it relevant, “even if the jury will not be deliberating on that issue, to provide context to State Farm’s alleged efforts to conceal its contributions supporting the Karmeier campaign.” 

He denied a motion to preclude references to ethical duties owed or breached by State Farm counsel, in house and outside. 

He denied a motion to exclude campaign advertising. 

He denied a motion to exclude evidence that State Farm subverted the judicial evaluation committee of the Illinois State Bar Association in 2004. 

He denied a motion to preclude references to per capita damages. 

He denied a motion to exclude a chronology Karmeier prepared for an interview after retention. 

“The court will not depart from its previous ruling that this evidence is not privileged, it is admissible, and it is relevant to the issues in this litigation,” Herndon wrote. 

Last, he denied a motion to exclude evidence that plaintiffs are entitled to damages that the Supreme Court reversed. 

“The defendants treat the Avery damages as though they do not exist and so plaintiffs cannot possibly be awarded an amount equal to those damages since they no longer exist,” he wrote. 

“It is clear from this request that defendants’ counsel continue to misunderstand, refuse to understand or refuse to reveal to the court that they understand the nature of this litigation. 

“The jury theoretically could find that the damages equal those at stake in the Avery case or could decide the damages are something else entirely.”

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Organizations in this Story

Fordham UniversityEmory UniversityIllinois Supreme CourtIllinois Civil Justice League

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