Judge Crowder

If chiropractor Frank Bemis intends to pursue a class action against Safeco Insurance for paying him less than he charged for treating accident victims, he must explain how he sets his prices.

Madison County Circuit Judge Barbara Crowder astonished Bemis's attorneys at the Lakin Law Firm in October by ordering them to produce billing records back to 1995.

Crowder said at a hearing that if Bemis couldn't retrieve the data from his computers, Safeco can send an expert to retrieve it.

Crowder ruled in Safeco's favor after learning that Safeco gave the Lakins 238,000 pages of evidence and the Lakins gave Safeco three pages.

If Safeco finds that Bemis adjusts prices on an individual basis, the way he adjusts spines, Safeco can argue that Crowder should deny certification of a class action.

A judge can't certify a class action if individual issues predominate over common issues.

Crowder heard about the lopsided exchange of information at an Aug. 23 hearing.

Safeco attorney Cari Dawson of Chicago said Bemis alleged that Safeco partially refused to pay reasonable and necessary medical expenses.

She said how Bemis determines the amount to charge and how much reimbursement he accepts from various vendors for the same treatment were relevant.

"We simply have asked for the class period that the plaintiffs themselves have asked for, that is, 1995 to the present," Dawson said.

She said if there were difficulties getting information from computers, Safeco would provide a specialist to assist in extracting it.

Dennis Barton of the Lakin firm said, "Documents that they seek will encompass virtually every shred of paper for every client since 1995."

"If they want to find out how the plaintiff sets the pricing, the plaintiff did agree to provide them with – It was the second document that was sent which was a Medicare fee schedule," Barton said.

Crowder said, "It was a 2007 fee schedule."

Barton said, "Right. What we will agree to do is, I'll ask the plaintiff to go back again and investigate into his records."

"We will supplement if the plaintiff could find anything else but the plaintiff said that's all he could find," Barton said.

He said Bemis hasn't set prices exactly by the Medicare schedule. He said Bemis used it as a guideline to assist him in pricing.

Crowder asked if he used specific software to help him set prices.

Barton said, "He said no."

Crowder said, "Isn't that one of their questions? Wouldn't you just answer that, or did you answer that?"

Barton said one question asked about any computer software or source. He said, "Does source mean computer source or any source?"

"He uses the source that he uses, the Medicare guidelines which he did produce," Barton said.

Crowder said, "I remember seeing that as I was reading through everything. I'm thinking well, either he does or he doesn't."

"If he doesn't," Crowder said, "why wouldn't he just say I don't use computer software to set my prices. I basically looked at the Medicare schedule and then tried to keep my numbers in line with that."

Barton said, "You have to be really careful going down this road of everything that the plaintiff uses to determine what prices he is going to set. That's not what this case is about."

He said the key issue was how and why the defendants determined that the plaintiff's pricing was unreasonable.

"The way they make the reduction is illegal so it's not, does the plaintiff have the proper method of pricing," Barton said. "It's, does the insurance company have the proper method of reducing the payment.

"That's what this case is about and anything else is a red herring."

Crowder said, "If the crux of this case was your guy wasn't paid what his usual and customary and reasonable fees were, don't they get to even ask that in discovery?"

Barton said, "I do believe that to be – to say irrelevant sounds strong but I do believe it is.

"The plaintiff has said that he will answer the court's question as to generally speaking how things are set."

Crowder said, "He is instructed to answer whatever questions I tell him to."

Barton said, "I'm sorry. We will go back and look to see further what other Medicare guidelines he has on hand."

He said he would provide files of any patients that had Safeco insurance, if Safeco would give him their names.

Dawson said, "How are we supposed to know whether or not Bemis's charges for the medical expenses are reasonable or not if we don't know how they are calculated?"

Dawson associate John McMullin said that if Bemis billed more to Safeco than he billed to somebody else, Safeco should be able to put that in front of a jury.

"A jury wouldn't like to hear that because they would think that Dr. Bemis is speaking out of both sides of his mouth," McMullin said.

"It may be burdensome but it is stuff that will kill your case if what's in it is what we think is in it," he said.

Dawson said, "I can just pull out of a hat and say well, you know, I'm going to charge X for my services. And does that mean the insurance company has to pay whatever you said is a charge?"

Crowder took it under advisement.

On Oct. 15, she ordered Bemis to produce billing records since 1995.

That didn't end the dispute, and on Oct. 19 Crowder again heard arguments.

She told the attorneys her order didn't go through every detail, in hopes that she would give them some idea of the discovery rules.

"I thought well, I'll give you this much and then see if you all can go forward from there," Crowder said.

Barton said the order entitled Safeco to records if Bemis had a global search.

Crowder said, "If you can do it."

Dawson said her experts could extract the information.

Jonathan Piper of the Lakin firm said, "They have their own computer system where they can look up Dr. Bemis and see all the patients that he submitted to Safeco."

Dawson said, "That's not true. You are making that representation."

Piper said, "If there are records they want, they should tell us these are the patients we are looking for."

Crowder said, "They certainly can do it that way but otherwise, the way they have asked it, if he can answer that from his files he needs to do that."

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