County officials: non disclosure not because of casino money but, anticipated litigation

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Switzerland County attorney Wil Goering and County Commissioner Steve Lyons want to clear up some misinformation:

The county’s unwillingness to turn over the results of the Geotechnical Engineer with regard to the landslide happening at the home of Ed and Melissa Brush on Evans Hill Road has nothing to do with where the money to pay for it came from.

It has everything to do with the possibility of the county facing a lawsuit as a result of the slide; and protecting the county taxpayers when and if that happens.

“They came in on March 21st and brought their complaint, which was also labeled as a ‘claim’,” Goering said about Ed and Melissa Brush coming to a meeting the commissioners. “They went through it, there’s 19 pages of photographs attached, and about their problem and they blamed the county for their problem.”

Goering said at that point he saw the potential for litigation against the county, so he advised the commissioners that they needed to hire an expert.

“We don’t have a county engineer that we employ, but we have an engineer that we’ve used when we’ve had matters before,” Goering continued. “But when we’ve had matters before, we’ve used an engineer, so we called that person up and had them come and take a look at it. That person said that we needed a further expert; so again, we got a further expert.”

Goering said that both of those experts have been out to look at the property.

“I guess one of the big frustrations that the Brushes appear to have is that we won’t give them those reports,” Goering continued. “We won’t give them the reports because they are declared confidential under Indiana law.”

Indiana Code 5-14-3-4(a)(1) and (8) states:

“A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only provided in Rule 35(B) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”

With litigation against the county a possibility, the county officials see a need to protect the county and the taxpayers as the situation proceeds.

Goering said that he addressed that issue on behalf of the county in a letter to the Public Access Counselor in Indianapolis. In that letter, Goering specifically spoke of the reports.

“When we hired an expert in anticipation of litigation, that expert’s work is privileged and confidential unless we say that we’re going to use that expert at trial in a testimonial way. If we’re going to do that, we have to disclose that person’s identity and we have to disclose their report,” the attorney said. “The identity has already been disclosed. They’ve met this person; but they aren’t going to get the report.”

Goering said that his letter to the Public Access Counselor was in response to a complaint filed with that office by the Brushes stating that they were not getting county records and not being able to get the report.

“It’s not even something that the commissioners say, ‘You can do this, give it to them’,” Goering continued. “It’s all part of pending litigation. The first thing they filed, in my view, threatens litigation in writing. It says, ‘you’re responsible for our loss’. Since then, their attorney has filed another pro claim notice.”

“He (Ed Brush) called me on Friday, March 18th, and I was having a late lunch,” Commissioner Lyons said. “I made a note of who he was and his phone number on the back of my receipt for food; and he told me of his problem. That’s when I said ‘okay’.”

Lyons said that he rode out past the house the following day, Saturday, March 19th, but it was raining heavily so he didn’t get out of his truck, and then on Monday, March 21st the couple came to the meeting.

“The geotechnical expert was only retained as a result of their claim,” Goering said. “And that makes a lot of difference. If we have a county engineer and they do work for us all the time, unless it’s a litigation matter, their reports would be public. But a person who’s retained as an expert because of anticipated litigation, those reports are confidential.”

Some claims have been made on social media and in other areas that the reason that the county has refused to hand over the results of the geotechnical engineering report is that the cost of the report was paid for from riverboat revenue sharing funds, not county tax dollars.

Is that accurate?

“It would not matter how it was paid for,” Goering said. “That expert is being paid out of county funds. But that doesn’t make any difference. It’s how it’s classified, but as litigation material, not how it was paid for. It wouldn’t matter if it was riverboat gaming money, tax dollars, a grant from the state — it wouldn’t make any difference, it’s all county money.”

“In my opinion, no matter where it comes from, it’s the people’s money,” Lyons said. “Whether it comes from taxes or from the boat. It’s all county money.”

Another issue is a meeting that happened in May where the Brushes asked for reports.

“They said that they asked for the report, and that they were lied to and told there was no report,” Goering said. “I can tell you that I’ve shown these emails to the commissioners, and at 4 p.m. before our 5 p.m. meeting, I wrote to the engineers and said, ‘Do you have a report for me yet? I’d like to be able to share that with the commissioners if you have it’. They emailed back and said, ‘No report yet’, so we get to the meeting, and it comes up, ‘What have we heard from the engineers?’ ‘Nothing. No report yet’.”

Goering said that the next day, he got the report; but at the time of the meeting and the question being asked, the county did not yet have the report.

No one was lied to.

“It didn’t matter when we had it, because it was going to be treated as confidential, because of the anticipated litigation,” Goering said.

“But I told them, that when I was up there, that I feel for them, I know they’ve got a problem,” Lyons said. “I was up there because I was asked. I knew they had a problem. I told Ed (Brush), ‘I don’t know if the county has zero, partial, half, total responsibility in this. Somebody else is going to have to make that determination. And I still mean that. If something comes up that says we had a cause in it, some responsibility, then we’ll deal with that. I think everybody feels that way. There’s nothing I can go say or do. I feel like I’ve done what I needed to do, I’ve facilitated something to happen.”

“You also have to separate the slippage from any county activity,” Goering said. “Obviously there’s a problem with the slippage, and they were told, because any time you look at a situation where it’s a matter of life or health, you’ve got an obligation to disclose, they were told, ‘this is an active slide, and it’s dangerous to be in this house’. Not saying that the county caused this slide, but just saying, ‘Look, there’s a slide here and this is unstable and you should not live here’. That was done. The reports that they were told that – that’s true – but nobody has talked causation.”

So does the county anticipate a day when some expert will hand in a report that definitively shows what’s happened and what caused it?

“I would think that the only way that’s going to happen is if a court makes a determination,” Goering said. “That would be the definitive answer.”