Defense: Class plaintiff's trial plan 'put together on the fly'

By Steve Korris | Dec 19, 2008

Bozarth Jonathan Piper of the Lakin Law Firm lacked a trial plan going into a class certification hearing in Madison County Circuit Court. But according to defense attorney Jeffrey Lennard for MetLife Auto and Home, he developed one as he went along.



Jonathan Piper of the Lakin Law Firm lacked a trial plan going into a class certification hearing in Madison County Circuit Court. But according to defense attorney Jeffrey Lennard for MetLife Auto and Home, he developed one as he went along.

"What I think might make the most sense in this case would be to have experts do surveys of a statistically significant set of claims files and the jury could award aggregate damages being based on the opinions of the experts on both sides," Piper told Judge Daniel Stack on Nov. 10.

"There would be a claims process which would figure out how to dole that money out within the class which could be done with a special master," he said.

He said another way would be to "do a claims process and then have a jury review the results of the claims process and at that point they could make an award more or less confirming what the results of the claims process were."

Lennard said, "He is making it up as he goes."

He called it "free wheeling speculation."

Stack took it under advisement.

Piper's client, chiropractor Lawrence Shipley, seeks to represent patients and providers who received less on worker compensation claims than MetLife should have paid.

He sued MetLife in 2003.

Separately he sued Continental, Lumbermen's Mutual, Safeco, Travelers, Hartford, Farmers and Zurich Services in Madison County.

No judge has certified Shipley to lead a class action.

In the MetLife suit, Shipley proposes a class action claiming breach of contract in 15 states and an Illinois consumer fraud class action.

At Stack's hearing, Piper told him he should certify a class action because common issues predominated.

"There are cases saying that if a provider says his fees are reasonable, that's sufficient to establish his reasonableness," Piper said.

Troy Bozarth said for MetLife that as plaintiff, Shipley made all claims deficient.

"Because he is a doctor, it creates a patent conflict with other members of the class," Bozarth said.

Lennard said Stack must first determine whether Shipley is a member of the class.

"They chose to proceed solely with a provider," Lennard said.

Stack asked, "If the doctor receives an assignment from the patient, then how is the doctor different from the patient as far as the contract goes?"

Lennard said, "There are unique and different interests that the two have."

Bozarth said Shipley told him it would be total speculation to say whether another doctor's bill was properly or improperly reduced.

"The problem is, somebody is going to have to make that determination," Bozarth said.

"Plaintiff hasn't told us one thing about how this thing is going to be tried," he said.

"What makes this worse in the breach of contract sense is that they are doing it under 15 states' laws."

Stack asked if other states define contract differently.

Bozarth said, "With regard to what standing is, what injury is, what an assignment is, absolutely."

He quoted a plaintiff brief stating that argument over assignments could readily be addressed through a claims process.

He said, "If it's so easy and so readily addressed, what is this claims process?"

"How come they can't tell us today? Why is it a mystery?

"Are we just going to have them check a box? If you have a valid assignment under your state law, check this box and then we pay you?"

He asked if some administrator would review the liens.

Bozarth asked, "Your honor, are you going to look at all these liens?"

Piper said, "They are not disputing the existence of common issues and the law says you only need one common issue to justify certifying a class."

Paul Marks of the Lakin firm said he had two pieces of a trial plan that could be used.

He said he had sample jury instructions for breach of contract.

"I think that with a mere seven pages we can show that the trial of this case would be manageable," he said.

Stack said, "What are you proposing that our jury determine, simply that they breached the contract in all these places by making these computer generated determinations?"

Marks said, "As far as the details go, I think those are yet to be decided."

Piper said, "One option would be for the court to simply have the jury assess liability and then it could go various directions, you know, from small claims for the individual class members to a claims process,"
he said.

Then he laid out his plan for surveys of files, expert opinions and aggregate damages.

Lennard said Piper didn't propose any way to determine what bill is reasonable and what bill isn't.

Bozarth said, "This quasi-plan that we've kind of put together here on the fly really isn't thought out and it doesn't address the issues that were raised by the defense in the case."

Stack asked Piper for a brief on damage assessment, assignments and reasonableness.

Stack gave Piper 28 days but 37 days later, on Dec. 17, the brief had not arrived.

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