A recent Texas Lawyer story by Angela Morris, “Allstate Accused of Purposely Driving Up Litigation Costs,” reports that a Houston law firm wants to form a class action with other Texas personal injury plaintiffs firms in new lawsuit against a major car insurance company that allegedly puts up unqualified expert witnesses just to drive up litigation costs. It’s a case that might interest any plaintiffs firm that represents people hurt in auto accidents. Why?
If they’ve gone up against Allstate Fire and Casualty Insurance Co. in the past four years, firms could be eligible for a piece of the pie if the lawsuit ever gets to verdict or reaches a settlement. The plaintiff, The Estes Law Firm, estimated in its complaint that the class could include more than 10,000 Texas law firms.
Plaintiff lawyers who oppose Allstate are forced to spend their time and resources responding to improper affidavits by three other defendants that Allstate uses as expert witnesses, Marc Chapman of Austin and Dallas residents Rhonda Guitreau and Jana Schieber said the original complaint in Estes Law Firm v. Allstate Fire and Casualty Insurance Co. Attorneys at Rusty Hardin & Associates in Houston are representing the putative class.
Partner Ryan Higgins said the Hardin firm has a case where Allstate used one of the three experts and was doing research to prepare a motion to strike the expert. He and the other two expert witnesses had been struck by courts over and over again.” “Clearly it is a strategy to increase the costs for the case to be prosecuted,” said Higgins. “If I spend an additional 20 hours dealing with an affidavit that is going to be struck, it is time away from plaintiffs counsel. It doesn’t ultimately impact the client himself. What it does–it is part of strategy, we believe–is to make it difficult to litigate cases against Allstate.”
The litigation alleged Allstate has been retaining the witnesses “in an effort to improperly harass and defraud plaintiffs and all other members of the class.” When Allstate uses one of the three witnesses, it forces a plaintiffs attorney to incur time and expenses to file motions to strike them. When that fails, plaintiffs lawyers must do depositions of their own experts or bring them to trial so they can counter the improper affidavits.
The complaint explained that Texas Civil Practices and Remedies Code Ch. 18 lays out the procedure for a plaintiff to recover medical expenses in litigation. In an affidavit they list the doctor, how much expenses they incurred and how much they’ve paid already. The court uses the form to prove up medical bills and expenses. This allows a plaintiff to avoid bringing his doctor to court to testify about medical bills.
The law also gives a defendant the chance to file a counter-affidavit that means they intend to controvert a medical expenses claim. A qualified expert witness, with experience in the relevant medical field, must prepare the counter-affidavit. “Allstate, in an effort to harass, delay, and bully plaintiffs and their lawyer, intentionally ignore the requirements of Chapter 18 and hire unqualified people to prepare so-called controverting affidavits in areas they have no knowledge, skill, training, education or experience,” said the complaint.
Chapman isn’t a doctor. He’s a consultant who used to be a hospital reimbursement manager who sent out its bills. The complaint alleged he has zero qualifications to offer opinions about whether a medical bill is reasonable. But Allstate keeps hiring him to write affidavits saying bills are too expensive for surgeons, doctors, chiropractors, radiologists and other providers, the complaint alleged. It added that Allstate knows he’s not qualified.
“Chapman’s affidavits and opinions have been struck by almost every court in Texas,” the complaint said. “It is easier to list the courts where Chapman has not been struck than to identify every case and court striking Chapman.” Similarly, the complaint alleged that Schieber—a nurse in the 1990s—isn’t qualified to talk about billing rates for most medical providers and courts have struck her repeatedly. She may only be a qualified witness if talking about a nursing bill from the 1990s, the complaint said. It added that Guitreau—also struck by most Texas courts as an expert—only has experience in hospital administration where she sent out bills for hospitals.
The Estes Law Firm is suing the defendants for fraud and civil conspiracy and trying to recover actual damages, attorney fees and court costs and punitive damages for itself and the whole class of Texas plaintiffs law firms that have dealt with Allstate.