Volume 1000, No. 2

As always, the Hospitality Suite will be open every evening throughout the convention, to provide us with a venue for good food and marvelous stories.

The convention details are as follows:

Location:                Wyndham Resort & Spa, Ft. Lauderdale, Florida  (Sunrise)

                             1-800-WYNDHAM for reservations (ask for TER rate)

Room Rates:             $125.00 per night (with a second room available for your minor children at $115.00 per night); $145.00 per night for an Extended King room;  $175.00 per night for a One Bedroom Suite.

                             Rates are available from December 22^nd through January 4 for those who would like to extend their vacation.

Convention Fee:          $400 per couple (includes opening & closing dinners, CLE, New Year’s Eve reception, and nightly hospitality)

Registration forms were mailed out to the membership in August.  If you need another copy, please call or email Alan Tepper, the Executive Director, at (856) 429-3901 or tepesq@erols.com. 

DISCOVERY IN A MANAGED CARE CASE

By Andrew S. Kessler, Esquire and David S. Senoff, Esquire¹

(The first part of this article appeared in the April 2000 issue of the Summons.)

III.            Deposition Tactics

Although depositions represent the most costly form of discovery, few other discovery devices are as effective.  In cases involving denial of care to an insured who was diligent enough to appeal the MCO’s decision through the internal appeals process and a state government appeals process, it is likely that numerous MCO employees were involved in the denial of your client’s claim.  Depositions of these individuals may yield critical information and should be diligently pursued.

Why do these depositions play an important role?  While the higher ranking individuals involved in your client’s claim (e.g. medical directors, case managers and utilization managers), might seem like the “sexy” depositions to be taken, they actually may shed very little light on your claims.  More frequently, it is the “administrative” individuals – those individuals who have had day-to-day involvement in your client’s treatment decisions – who possess the most knowledge about your client’s claims.  These “administrators” have had the bulk of the telephone contact with your client, have entered notes into the MCO’s computerized tracking system, and have interacted with medical directors to apprize them of the status of the claim.  An added “bonus” is that these individuals customarily keep their own “shadow claims files.”  Obtaining production of the “shadow claims file” is reason enough to depose many of the MCO’s administrative employees.

Our experience has taught us that these “shadow claims files” contain copies of documents that may or may not have appeared in the claims file produced during discovery by the MCO as the “claims file.”  When deposing any individual, always specifically request that the individual  bring their original file as well as copies of all documents regarding your client contained in their computer systems.  By deposing these intermediate level employees, and obtaining their shadow files, you may obtain information that otherwise was not produced.

Like any deposition, preparation is key when deposing MCO employees.  Make certain that you’ve received full responses to your document requests before starting depositions.  This enables you to confront the witnesses with documents they may have had a hand in creating.  Organization, knowledge of the file, and the ability to use the MCO’s nomenclature, which may “shift” during the case, will demonstrate your familiarity with the file, and will garner the witness’s respect, thus discouraging the witness from attempting to “fudge” answers.

For a seamless deposition, pre-mark your exhibits and prepare questions about each document.  This avoids wasting time between questions.  Without this delay, a witness has less opportunity to formulate her excuses/explanations regarding a particular document.

Finally, one note about scheduling.  While you should commence depositions only after  having had the opportunity to receive and review the defendant’s document production, you should nevertheless attempt to conduct depositions early in the case.  This full steam ahead approach will immediately pressure the MCO to prepare its witnesses for deposition at the beginning of the case, before it has developed a cogent defense strategy and before defense counsel has an opportunity to extensively interview the witnesses.  These depositions result in more candid answers which have not been previously “scripted.”  Avoid repeated rescheduling of the depositions which only allows the witnesses to coordinate their testimony with one another.  One delay you may agree to is not finishing the deposition in one day.  While it may extend time to the witness to reflect on his or her answers, it will also allow you time to reflect on any subjects that were insufficiently covered by your first day of deposition.²

IV.            Discovery Motion Practice

With the exception of responding to a Motion for Summary Judgment, nothing else will significantly impact your case in chief as discovery motion practice.  Expect that your first sets of Interrogatories and Requests for Production of Documents will be met with numerous objections.  Although MCO’s will usually provide you copies of your client’s claims files and any other documents associated with your client’s specific requests for treatment, they will not voluntarily produce documents which may reveal how and why the denial of care was made.

Requests seeking internal committees’ meeting minutes, personnel files of the individuals involved in denying your client’s claim, procedure manuals, and financial data as to how the company actually “manages care” will be met with objections that the requests are “overbroad.”  MCOs will repeatedly contend that information specific to your client’s claim is all they are required to produce.

Upon receiving the “overbroad” objection, send defense counsel a letter advising of your disagreement with their objections.  Do not give counsel time to respond since they will only defend their objections.  Upon sending the letter, file a Motion to have the Court rule upon the objections.  This accomplishes two goals. First, you demonstrate to opposing counsel you are  serious about your position.  This may result in casting a chilling effect upon opposing counsel making such objections in the future.  Second, you place your position in front of the Court first.  In the event you continue to face objections to discovery, the fact that you have been compelled to repeatedly file motions to obtain discovery will reveal the MCO’s pattern of vexatious discovery practice which the court will come to recognize.

V.            Discovery Demeanor

Do not confuse demeanor with professionalism.  While we advocate a “take no prisoners” approach, we are mindful of our obligations to our clients, our adversary and the Court under the Rules of Professional Conduct.  That being said, the circumstances that present themselves in bad faith cases are such that it does not pay to always try to be a “good guy.”  We are not advocating evil.  Rather, we advance our cases through employment of  zealous, responsible litigation tactics.  While the purpose of this section is not a how-to guide, the following might be of assistance when unsure of how to approach a particular situation.

Delay is the enemy. In many circumstances, your client needs medical care that is being denied.  That said, delay hurts your client more than anyone.  It is your duty to control the delay.  When defense counsel contacts you upon receipt of the file, do not provide an extension of time to “respond.”  If defense counsel wants additional time to file an answer, grant the request, but do not extend more than 20 days.  If defense counsel wants to file a Motion to Dismiss, keep their feet to the fire.  This will inevitably be met with some long-winded speech by defense counsel lamenting the lack of “professionalism.”  We suggest advising defense counsel that your position will be that you will not grant extensions and you will not ask for them.  If you do decide to make such a statement, stick with it.  Do not create exceptions.  If defense counsel still seeks to remind you about how “one hand must wash the other,” simply advise that your client is not in the position to accept the usual delays which occur in litigation, and ask that defense counsel understand your stance in this regard.

All discovery has deadlines imposed by the Rules of Civil Procedure.  Enforce the deadlines.  If discovery responses are late, send one letter, or make one phone call, to resolve the issue.  If you can’t, file a Motion to Compel.  Be mindful, however, that you  must live by the deadlines, too.  Provide timely and complete responses.  Try to ensure that defense counsel has no basis to file a discovery motion against you.  Do not allow repeated re-scheduling of depositions.  Schedule the depositions and do all that is in your power to keep the schedule intact.

Bad faith cases are hard fought battles with, in many instances, millions of dollars at stake.  Do not worry if your opposing counsel doesn’t like you because you won’t be a “good ‘ol boy” and play by the usual rules.  The relationship with your opposing counsel might be “cool” but it will likely not have any effect on the amount of a settlement or verdict you obtain.  No defense counsel will suggest to its client that because plaintiff’s counsel is a nice person, the client should put a little more money in the pot.

Set the tone early.  Be serious.  Be courteous.  Be consistent.  Be committed to promptly conducting the discovery which you need in order satisfy your burden of proof.

V.            Conclusion

Bad faith cases are difficult, hard fought battles.  To increase the likelihood of success in these matters, discovery takes on heightened importance.  Knowing this, you will be met with significant resistance in your attempts to obtain the depositions and documents which will help you satisfy your burden of proof.  We hope these articles have provided a context within which the practitioner can maximize his or her fact gathering efforts.

   ---- FOOT NOTES ----

1. Andrew S. Kessler and David S. Senoff are partners in the law firm of Kessler Senoff L.L.P., 1616 Walnut Street, Suite 918, Philadelphia, PA 19103, concentrating their practice in the field of managed care liability and bad faith litigation. For additional information, please contact them at (215) 790-1188 or by e-mail at ask@kesslersenoff.com or dss@kesslersenoff.com  
   

2. Some jurisdictions place absolute time limitations on depositions.  A concentrated effort should be made to comply with all local rules.  It is better to take a shorter deposition than to run afoul of the judge.  However, if after the completion of the specified amount of time for the deposition you determine that you have additional questions for the witness, promptly file a motion seeking leave of court for additional time to conduct the deposition.

E-MAIL ADDRESSES NEEDED

 We are asking all members to give us their e-mail addresses, to improve the flow of communications from the National Society.  Please send them to Alan Tepper at: tepesq@erols.com. 

TAU EPSILON RHO-SCHWARTZBERG SCHOLARSHIP FOUNDATION Report

(The Tau Epsilon Rho - Schwartzberg Scholarship Foundation provides financial support and partial underwriting for the Tau Epsilon Rho Summons, various TER-associated scholarship programs at major law schools, and both National and Graduate Chapter  continuing legal education programs at meetings and conventions.  – Editor)

Have you made a contribution to our Foundation lately?  Is our Foundation included in your will?  Our Foundation helps make possible Legal Education speakers at major Tau Epsilon Rho chapter meetings, and at our National Convention.  It also makes available small loans to law students in need.

Last year, it began to find a Tau Epsilon Rho prize at Temple University Law School.  This matches a similar prize at the University of Michigan Law School.

Perhaps you would like to help us fund a prize at your law school, or in the name of a relative, or of a law partner, or a former officer of your chapter.

The Foundation is prepared to help our members explore new ways of performing charitable acts.

The Foundation is able to do these things because members of Tau Epsilon Rho have been willing to give.  Please join them in supporting your Foundation.  Checks and bequests should be made payable to: Tau Epsilon Rho Schwartzberg Scholarship Foundation.

Please direct any questions or inquiries to Hugh J. Schwartzberg at hugh@lawyer.com. 

The Last Word

BARRY L. LIPPITT, National Editor

     For a variety of reasons, I had more time available this summer and fall to watch television than planned.   Being born in 1956, I grew up watching television before experts decided that television was bad for children, and I am confident that watching will not warp my character at this stage of life.  Unfortunately, my increased TV watching coincided with the beginning of the political infomercial season.  The information presented to me about this year’s candidates is truly astounding, and makes me wonder whether the ad planners use scandal sheets for their background checks.

     At the same time, I was able to follow closely a controversy raging in the Michigan legal community.  An attorney who suffered an adverse ruling before the Michigan Supreme Court expressed his opinion, in writing, in a statewide legal newspaper.  His opinion was that certain justices (coincidentally all facing the challenge of reelection this fall) were unduly influenced by their campaign contributors, rather than a careful consideration of plain language and precedent.  Following this exercise of free speech, the general counsel for the Michigan Republican Party filed a grievance with the attorney grievance board because of the assault on the integrity of the justices.  Following a highly publicized investigation (that included requests from the investigator that the attorney disclose his associations and affiliations), the matter was closed out with a finding that this was not a matter to support a formal inquiry.

     Except for those of us with political aspirations, we, as a group, tend to stay above the fray.  Most of us are concerned about any perceived criticism of any court, judge, or politician who has the ability to affect our ability to earn a living (let alone represent our clients effectively).  My reasoning after being inundated with political ads and attempts to suppress attorney speech lead me to a different conclusion. 

     As attorneys, we are more intricately bound up in the democratic process than most people in this society.  We have a much more developed idea as to what various policies and procedures espoused by the candidates for office and the bench will really have, in spite of the ads addressed to the ill-informed and under-educated majority.  Consequently, we have a duty to involve ourselves in the process, because we have a special insight into the potential consequences of electing one candidate or the other.

What can we do to further our agenda as attorneys?  Simple.

     1.  VOTE.  Its amazing how low voter turnout is in this country.  We have no basis to complain if we do not involve ourselves in the process.  And not voting, because of personal distaste for any candidate, is a copout; sometimes we need to vote against issues and policies rather than for any individual.

     2.  EDUCATE YOUR CLIENTS AND ENCOURAGE THEM TO VOTE.  Tell them about the stakes in the upcoming state and national elections.  For example, the next president will have a realistic opportunity to appoint from 2-5 justices to the Supreme Court in the next 4 years; these appointments will affect our lives for the next 25 years.

     Personally, I believe that attorneys are best served by supporting candidates who support democratic (small d) principles and philosophies.  Other considerations may influence us to have other considerations for supporting candidates. 

     Whatever your philosophy, use your position to share your informed opinion with others.  If we keep our thoughts to ourselves, particularly regarding judicial candidates and legal issues, we have no basis to complain about our lot when, eventually, there is no meaningful opportunity to practice law in the future.