Lawyer fishes for 17 years of records from 35 states in class action against Cincinnati Insurance

Steve Korris Nov. 1, 2007, 10:13am

Dennis Barton

Judge Barbara Crowder

Dennis Barton of the Lakin Law Firm wants someone at Cincinnati Insurance to search every email and other documents in company history for a common word with three initials beside it.

Madison County Circuit Judge Barbara Crowder has taken under advisement a motion that would compel Cincinnati to show Barton every document with "silent PPO" in it.

Barton, who represents chiropractor Frank Bemis, claims Cincinnati runs a secret scheme to reduce payouts on medical bills through preferred provider organizations.

The insurer denies wrongdoing and says it doesn't know what silent PPO means.

Barton wants Cincinnati to search for more than the magic phrase.

At a Sept. 27 hearing he asked for at least 17 years of records in all lines of business across 35 states.

Though Crowder took it under advisement, she informally left it up to Barton and Cincinnati attorney Daniel Litchfield of Chicago to work out their differences.

She took heart after they told her they get along well on the telephone.

They got along at the hearing, but a wide gulf of law separated them.

Barton told Crowder he sought "any agreement at all that dealt with the defendant's right to take PPO reduction."

He said he sought information about ways they steer or channel patients through financial incentives.

He said he sought information not only for workers compensation insurance, the subject of Bemis's complaint, but also for auto, home and other lines.

"We have asked for the amount of reductions by state, by year and by line of insurance that they have taken PPO reductions," Barton said.

"If we find out in Wyoming they took six dollars and 27 cents worth of reduction, that's not a state that is going to be probably included in the class."

He said he asked for training manuals and documents about PPO's.

Litchfield told Crowder, "These things were as broad collectively as discovery could possibly be."

"Why this should be exploded beyond workers compensation policies themselves is beyond me," Litchfield said.

"This is fundamentally, in this stage of the case anyway, an Illinois case. Why should there be a fishing expedition for nationwide discovery?

"The discovery that we are facing is written so broad that it would get at any vendor we have ever used any place in the country, perhaps even in the world."

He said discovery requests had no time limit.

"Cincinnati Insurance Company was founded in 1950," Litchfield said.

Crowder said PPOs didn't exist back then.

Litchfield said cases from the 1980s dealt with medical review by professionals.

He said Barton asked for every document that contains "silent PPO."

He said that in a key word search on a recent block of e-mail, it didn't come up at all.

Crowder asked, "That one was unlimited in time also?"

Litchfield said yes.

Crowder told Litchfield that what Barton said was different from his discovery request.

Litchfield said, "More than a little bit."

Then he mended his fence.

"Mr. Barton and I have spent a lot of time on the phone," Litchfield said. "We got to know each other very well.

"That's a very fruitful process and that helps both of us, I think."

Crowder said, "So you give me some hope that if I decide the major legal issues as to the scope of what Mr. Barton gets to ask you about, that you and he might be able to then agree on the specifics?"

Litchfield said, "It is very important that the court helps us with our burden concerns.

"If we can get that kind of washed out and then focus on these things in the light of your honor's ruling, I'm going to take a go at that."

Barton said it was unrealistic to think Cincinnati wouldn't have a training manual that discusses PPO's.

"They have millions of dollars in reductions, and there is nothing in writing?," Barton said. "I mean that in and of itself would seem to support the fraud count."

Crowder said some requests went before Barton's birth.

Barton said the relevant period would go back to 2002.

"Going before that, however, though, your honor, I mean it's a balance," Barton said.

"I am not so naïve as to think they should be forced to dig up anything ever, but if they do have information, if they do have past contracts with PPO's that talk about financial incentives, that would all be relevant.

"It would be very interesting to see if they have contracts with other networks back in 1990."

Crowder said, "Do I limit you to 2002 or do I say 1950 on? You know, that is a heck of a scope."

Barton said, "I doubt in 1950 there were PPO's."

Crowder asked about geographical limits or limits on lines of insurance.

Barton said, "What we are going to find in this contract, we believe they are going to have the same language in all the states. Or, there is no contract and there was no contract in other states.

"Even if the court believes that the class should only be contained within workers compensation, how the defendant treats auto or other lines of insurance when they take reductions from those is still important."

Crowder asked whether they could work out the dispute if she decided the time period, the number of states and the lines of insurance.

Barton said they could work it out. He said, "We have had a great relationship so far."

Crowder said, "I will do my best to limit what I think seems to be reasonable."

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