'Black out' signifies new era of class action privatization

Steve Korris Jun. 27, 2008, 7:54am

In a transcript of a hearing in a multi million dollar civil suit, in a courthouse taxpayers built, black bars cover so many words and numbers it hardly makes sense.

The transcript, which Madison County Circuit Judge Barbara Crowder sealed from the public while attorneys redacted it, signifies a new era of privatization in class action litigation.

Madison County Circuit Judge Daniel Stack barred a reporter from a class action hearing April 30, though he soon halted the hearing and retrieved the reporter.

In Texarkana, Ark., Miller County Circuit Judge Kirk Johnson barred a reporter from a class action hearing May 13, admitting that
it "goes against the grain of the First Amendment."

In all three cases, attorneys have signed protective orders preventing the public from seeing documents that defendants have surrendered to plaintiffs under discovery orders.

The protective orders apply to contracts, medical records, trade secrets and such.

In the case before Crowder, the Lakin Law Firm represents chiropractors seeking classwide damages from Liberty Mutual Insurance.

The chiropractors claim they joined preferred provider organizations, or PPOs, but Liberty Mutual didn't steer patients as it agreed to do.

Liberty Mutual moved for partial summary judgment precluding certification of a class action, and Crowder held a hearing April 22.

Liberty Mutual attorney Russell Yager referred to Exhibit A and read it: "For health care services rendered to MedView subscribers, Health Care Professionals agrees to accept" – a black bar appears –"of the usual and customary fee."

Yager read, "For claims covered under workers compensation, contract rate shall not exceed" – black bar – "of the official medical fee schedule as established by the State of Illinois."

"The agreements state what Liberty must do to steer patients," he said.

Bars hide the next four lines.

He said the 2006 agreement "specifically requires" – and then a bar.

He started quoting a contract and bars hide the next two lines.

"Client means the employers who buy workers compensation insurance with liberty Mutual that covered persons, the injured workers -," he said.

Bars hide seven lines.

He quoted a contract and bars hide four lines. Again, he quoted a contract and bars hide seven lines.

He said something about Exhibit C and bars hide three lines.

"The provider agreements are terminable at will," he said.

Some agreements provided a certain number of days to terminate and others allowed another number, but bars hide both numbers.

Yager displayed an agreement from 2001 and said, "It says that Liberty should -"

Bars hide seven lines.

He told Crowder, "If you look about half way down the bullet, through activities including but not limited to -"

Bars hide two lines.

"This amendment says, in new paragraph three point eleven -," Yager said.

In the heaviest redaction of all, bars hide 12 lines.

Yager continued, "None of the named plaintiffs' agreements that we looked at this morning have this kind of language in it."

"The notion that we have material differences in the statement of the duty is just not borne out by the documents," he said.

"It's very important, that payor language in the first line."

Bars hide two lines.

He continued, "We didn't see that language ever across the few contracts we have looked at. This is all payors."

Bars hide two lines.

He continued, "It's a mechanism to encourage."

"Let's read the paragraph," he said.

Bars hide seven lines.

Yager said, "Four point three is the extent of the steering duty."

Bars hide two lines.

"That's the duty," he said. "That's what is indicated in this agreement."

He told Crowder to look at section 19. "It says, add the following section, payor agreements," he said.

Bars hide nine lines.

"This is CCN contract 18," he said. "This one includes comp and the discount for comp is -"

A bar hides the number.

He said, "The following new section is added as section six point of five."

Bars hide seven lines.

He said, "Now," and the rest of the sentence disappears.

He continued, "If we were trying this case, just an individual case, your honor, you can imagine people are going to argue about what that means."

"Obviously the party intended by that word -" bar – "to exclude comp because we all know that you can't have reduced co-pays and reduced deductibles for comp."

"Article four says," and bars hide three lines.

"It doesn't even say financial incentives. It says -"

Bars hide two lines.

He picked up contract 20 and said, "This is a different sort of language here."

Bars hide seven lines.

He said, "CCN agrees that each agreement -"

Bars hide two lines.

"So once again, this one cuts out comp," he said.

He picked up Exhibit 10 and said, "This one includes comp. Let's look at this language."

Bars hide eight lines.

For the plaintiffs, Jeff Millar said Yager kept coming back to the same thing.

MIllar said, "Did they have the duty? We know they breached it if they had it.

"That's the issue that can be tried on a class wide basis."

Crowder agreed. She denied Liberty Mutual's motion.

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