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> Document 551 : INS 99-14 : Hearing Decision
DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION BUREAU OF INSURANCE
On March 10, 2000: (1) CAHC filed its Designation of Witnesses and Summary of Testimony; the MMA also filed its List of Prospective Witnesses and Brief Summaries of Testimony; and the MHA filed its Listing of Witnesses. Anthem moves to strike CAHC and the MMA’s filings, to preclude these Intervenors from offering the designated witnesses, and, unless these Intervenors file a proper, meaningful designation of issues and witnesses immediately, to preclude Intervenors from offering any witnesses. Anthem moves to strike that part of the filing listing three expert witnesses (Cluchey,Meehan and Letalien), and to bar their testimony. As explained in more detail below, the pleadings should be struck because:
In addition, Anthem notes that the MMA has listed its counsel of record, Gordon H. Smith, as a witness, which would require his disqualification pursuant to Maine Bar Rule 3.5(b)(1).
I. The Witnesses Should Be Excluded Because They Seek To Offer Expert Testimony. A. The Superintendent’s Rulings Barring Expert Testimony On March 3, 2000, the Superintendent denied CAHC’s motion for additional time to file expert reports, noting, inter alia, that CAHC "had ample opportunity to conduct discovery and engage expert witnesses." Five days later, the Superintendent issued similar orders with respect to the MMA’s motion for additional time to file expert reports, ruling that they "could not present any expert testimony" except by special leave of the Superintendent. The Superintendent properly excluded these Intervenors’ expert witnesses because, as his orders explain, CAHC, the MMA and MHA failed to comply with clearly established procedural rules and deadlines, despite ample notice and opportunity to comply.
B. MMA and CAHC’s Designation of Expert Witnesses Despite the Superintendent’s ruling barring expert testimony, these Intervenors nevertheless designate witnesses to provide such testimony. 1. The MMA As to two of its proffered witnesses, the MMA admits that they are experts, and notes that it will be moving for reconsideration of the March 8, 2000 order. Various other witnesses, however, are also included on the MMA’s list, such as Richard Sigmond, from Temple University. The MMA does not identify the subject matter of the testimony each witness will present, except in vague, general groupings. Such subject matters, upon which these three and many other witnesses are designated to testify include "the fairness of the purchase price for the assets of BCBSME"; "the importance and benefits of maintaining state-based, locally-controlled, non-profit health plans"; Anthem’s capitalization; "the extent to which any reduction in expenses or the creation of efficiencies can be anticipated;" "the ability of BCBSME to continue operations without an acquisition of assets by Anthem"; and "the systems and management support required by physicians and other providers to manage appropriately and successfully any downstream transfer of ‘substantial risk’ to physician and other providers." 2. CAHC CAHC has submitted the names of three witnesses: Dr. Norbert Goldfield, M.D., Medical Director for 3 M Health Information Systems; Dr. Richard Strong, a professor of finance at the University of Maine; and Lawrence Orlowski, a research analyst in New York. They are designated to testify on "the health and public policy issues arising from various practices and policies"; valuation; bidding and valuation processes; and market conditions and trends. The curricula vitae from these three witnesses are attached to show their expertise in these subject matters.
The MHA lists four fact witnesses and adequately describes the scope of testimony. Anthem has no objection thereto. – to the extent they offer lay, as opposed to expert, testimony. As to three other witnesses, however (Professor Cluchey, Professor Meehan, and CPA Letalien), MHA states that it "may also present testimony" from these witnesses "as expert witnesses in the event that it seeks and obtains leave from the Superintendent to do so. In the alternative, and subject to clarification from the Superintendent and A.A.G. Chamberlain, MHA may offer ‘regular’ prefiled testimony on certain of the points delineated below …." (MHA listing at 2.). Because these three experts are admittedly offering expert testimony, they should be stricken. Because calling their testimony "regular" testimony does not change its content and admissibility, Anthem asks the Superintendent not to allow such testimony. While MHA keeps positing that the distinction between lay and expert testimony is not clear, as the Superintendent stated in his Order dated March 8:
(Order, p. 2.)
C. The Designated Witnesses and Subject Matters Involve Expert Testimony In an evidentiary hearing, a party offers fact testimony and expert testimony. Fact testimony is offered by lay individuals, with personal knowledge of the relevant events. As the Superintendent observed, expert testimony is offered by witnesses with specialized knowledge, advanced education and other attributes that will assist the factfinder in assessing the fact evidence. Each of the three witnesses offered by CAHC is clearly offered to provide expert testimony. They are not designated to speak on any personal knowledge event – e.g., their personal participation in this liquidation and acquisition. Rather, CAHC offers them to provide their opinion and expertise on subjects such as valuation and bidding processes in general. Thus, the CAHC attaches to its designation materials designed to show the witnesses’ general expertise, such as advanced degrees and publications. The three MHA experts are also clearly offered to provide expert testimony. While MHA suggests that they may alternatively offer "regular" testimony from these witnesses, there is no indication in its filing that any of these three witnesses have any personal fact knowledge about this transaction. They are professors and a CPA. Their testimony should be excluded. The MMA’s filing is more opaque, because it lists more witnesses and does not properly specify the nature of testimony for which each is offered. Again, however, signs such as the Temple University address, and the long list of topics, such as the fairness of the purchase price, show again that these witnesses are not offered to testify as to their personal knowledge of this transaction, but rather, to present their general expertise. In sum, these Intervenors are attempting to circumvent the Superintendents’ exclusion orders. The MMA admits it is doing so as to two of its witnesses – but not as to the rest, although others are also clearly offered to provide similar testimony. MHA also makes this admission as to three witnesses – but then suggests, without support, that it can somehow turn their expert testimony into "regular" testimony. The CAHC does not admit that any of its witnesses are experts, although every one of its witnesses is being provided for this purpose. A recent Law Court decision is instructive. Chrysler Credit Corporation v. Bert Cote’s L/A Auto Sales, Inc., 1998 ME 53, 707 A.2d 1311. There, the Law Court reversed a judgment in favor of a party, finding that the trial court had abused its discretion in allowing a witness to testify, because he had not been timely identified as an expert. 1998 ME 53, ¶¶20-23, 707 A.2d at 1316-17. The witness testified on the subject matter of estimated lost profits, stating that he was familiar with the market and market conditions. Id. The party offering his testimony argued that it "was not expert in nature, but rather was a permissible lay opinion based on his firsthand view." Id. The Court held:
Id. Even though the proffered witness was personally involved in reviewing the dealer’s application:
Id. The same reasoning applies here. The only purpose for which these witnesses are offered is to provide opinions based on their expertise on the industry, valuation, or other specialized subject matters.
Still at this late date, most of the Intervenors fail to give any meaningful explanation as to the evidence they intend to present. For example, MMA lists nine witnesses, then a laundry list of various topics, without tying any particular subject to any individual witness. This persistent failure to present any cogent explanation of their positions, evidence and testimony prejudices Anthem. There are now fewer than three weeks until the hearing. Anthem has been trying to obtain some meaningful explanation of the Intervenors’ position since February 4, 2000, when Anthem filed its discovery requests. In lieu of requiring responses to those requests, the Superintendent, "in recognition of the need for information prior to the hearing as to the issues to be addressed," ordered Intervenors to designate issues on or before March 3, 2000. These designations were to "provide a detailed summary of the specific issues which each intervenor will address". (Order on Applicants’ Request to Compel Responses to Discovery Requests.) Given the lack of discovery, it is critical that the Intervenors fulfill their duties under the Superintendent’s Order. Intervenors’ designations of issues do not meet these requirements. (See Anthem’s Objections to Intervenors Designations of Issues at 13.) Hence, Anthem remains in the dark. If the Intervenors’s witnesses are permitted to testify, Anthem is harmed because Anthem cannot prepare adequately for the hearing. See, e.g., Chrysler Credit, supra, 1998 ME 53, ¶23, 707 A.2d at 1317 (reversing judgment based on prejudice caused by expert testimony because, inter alia, "Burbank’s surprise testimony left CCC with no time to formulate a meaningful cross-examination with respect to the proposed Subaru dealership’s lost profits").
IV. Gordon Smith Must Either Not Testify or Be Disqualified. The Maine Bar Rules are clear. Rule 3.5(b)(1) requires withdrawal "[i]f a lawyer knows, or should know, that the lawyer or a lawyer in the lawyer’s firm is likely or ought to be called as a witness in litigation concerning the subject matter of the lawyer’s employment…". Mr. Smith cannot both testify and represent his client. It would not only violate Bar Rules, but present the inappropriate appearance of impressing undue weight upon his legal arguments, as it would be offered as sworn evidence.
CONCLUSION For the reasons given above, CAHC and the MMA’s Designations of Witnesses and testimony should be stricken. These Intervenors should not be permitted to offer these witnesses at the hearing. The Superintendent should give the Intervenors one last opportunity to immediately file a proper, meaningful designation of witnesses and issues, or be barred from offering any witnesses at the hearing. As to MHA, the Superintendent should strike its three expert witnesses (Cluchey, Meehan, Letalien), not allow them to testify, and make clear that the remaining witnesses may offer lay testimony only.
DATED: March 15, 2000 _____________________________ James B. Zimpritch, Esq. Jeffrey M. White, Esq. Catherine R. Connors, Esq. PIERCE ATWOOD Portland, Maine 04101 (207) 791-1100 Attorneys for Anthem Insurance Companies, Inc.
CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 15, 2000 a copy of Anthem Insurance Companies, Inc.’s Motion to Strike CAHC and the MMA’s Designations of Witnesses was served by United States mail, first class postage prepaid, email, or, where indicated, by hand delivery, on each of the persons listed below. Robert S. Frank, Esq. Harvey & Frank Two City Center P.O. Box 126 Portland, Maine 04112 e-mail: frank@harveyfrank.com
(Blue Cross/Blue Shield of Maine) Judith Chamberlain, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: judy.chamberlain@state.me.us
(Bureau of Insurance) William H. Laubenstein, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: bill.laubenstein@state.me.us
(Office of the Attorney General) Gregory A. Brodek, Esq. Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor Bangor, Maine 04401-6355 e-mail: gabrodek@duanemorris.com
(Maine Health Alliance) Joseph P. Ditre, Esq. Consumer Health Law Program One Weston Court, Level One P.O. Box 2490 Augusta, Maine 04338-2490 e-mail: jditre@mainecahc.org
(Consumers for Affordable Health Care Foundation/Coalition) Michele M. Garvin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 e-mail: Mgarvin@Ropesgray.com
(Central Maine Healthcare Corporation; Central Maine Partners Health Plan) Robert I. Goldman Maine Council of Senior Citizens 27 Bowery Beach Road Cape Elizabeth, Maine 04107 e-mail: Rgoldma1@maine.rr.com
(Maine Council of Senior Citizens) Bonnie Post Executive Director of the Maine Ambulatory Care Coalition P.O. Box 390 Manchester, Maine 04351 e-mail: bdpmacc@mint.net
(Sacopee Valley Health Center, Regional Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Care Coalition) John Dieffenbacher-Krall Executive Director Maine People’s Alliance 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net
(Maine People’s Alliance) Gordon H. Smith, Esq. Maine Medical Association 30 Association Drive P.O. Box 190 Manchester, Maine 04351 e-mail: gsmith@ctel.net
(Thomas D. Hayward, M.D., Maroulla S. Gleaton, M.D., And the Maine Medical Association)
Donald E. Quigley, Esq. General Counsel 465 Congress Street, Suite 600 Portland, Maine 04101-3537 e-mail: quigld@mail.mmc.org
(Maine Medical Center) Sandra L. Parker, Esq. John Doyle, Jr., Esq. Attorneys for MHA, Inc. 150 Capitol Street Augusta, Maine 04330 e-mail: sparker@themha.org
jdoyle@preti.com (MHA, Inc.) Kellie P. Miller, M.S. Executive Director Maine Osteopathic Association 693 Western Avenue Manchester, Maine 04351 e-mail: meosteo@mint.net
(Maine Osteopathic Association)
DATED: March 15, 2000 _____________________________ James B. Zimpritch, Esq. Jeffrey M. White, Esq. Catherine R. Connors, Esq. PIERCE ATWOOD Portland, Maine 04101 (207) 791-1100 Attorneys for Anthem Insurance Companies, Inc Last Updated: October 1, 2008 |
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