Wednesday, July 28, 2010

Blumenthal Inattentive To The Rules Of Evidence

The case against Dr. Gad Lavy, who runs the New England Fertility Institute in Stamford, began with a resounding bang but ended with a whimper.

Attorney General Richard Blumenthal announced his suit against Levy five years ago. The sensational press release, picked up by the usual media outlets that rarely follow a contested case through its tortuous litigatory permutations, certainly was blow to Dr. Lavy’s solar plexus.

After the charges against him were dismissed, a relieved Dr. Levy said, “"This case was baseless from the beginning. It hurt me, my family, and my patients. I was pleased the Attorney General dropped the case, but it should not have taken 5 years to do so."

The initial media release contained specimens of Blumenthal regular potboiler rhetoric. Blumenthal accused the doctor of having charged a $600 facility fee to his patients when the doctor at the same time was collecting from his insurance carrier the same amount for the same purpose.

“This doctor,” Blumenthal charged in his media release, “imposed special fees to give himself special compensation, while falsely promising special care… In reality, these 'facility fees' were a false front - a scheme to pad his own profits… Imposing special payments for parenthood is unconscionable and unlawful, and now, Dr. Lavy will pay in court."

First the verdict, says the Queen of Hearts in Louis Carroll’s “Alice In Wonderland, “then the trial.”

Blumenthal’s case against Lavy, Ted Mann tells us in a carefully researched and well written piece that appeared in the Day of New London, fell apart like brittle old lace once Dr. Levy had his day in court.

On the stand was Kimberly M. Walsh, an executive from Connecticare, Lavy’s insurer, and she was being questioned by assistant attorney general Charles C. Hulin, the lead attorney for the state. Hulin had asked Walsh whether her company’s reimbursements would include a payment for the use of the doctor’s surgical facility. The question was an important one, because the state was alleging that Lavy charged just such fees to 355 female patients, sometimes for multiple procedures, totaling nearly $350,000.

The doctor’s attorney, Ross Garber, who is running this year for attorney general as a Republican, entered an objection: Blumenthal’s staff, he said, should have provided to the court the insurance contracts for each patient, which would verify that the cost was or was not a covered expense. The court should have had an opportunity to view the contracts and base its decision on primary documents; it should not make its decision based on hearsay testimony taken from witnesses who may or may not be familiar with the terms of the contracts.

Garber pointed out that in relying upon the uncertain testimony of witnesses rather than the primary documents, Blumenthal’s agents would be in violation of Article 10 of the rules of evidence, which hold that the contents of a document are proven by the document itself – not by a witness’s recollection of their contents. Judge Miller agreed with Garber that a reliance on the testimony of witnesses, rather than the contracts themselves, would violate Article 10 of the rules of evidence, which requires that the contents of a document are proven by the document itself - not what witnesses say it contains.

The judge turned to the assistant attorney general and asked, steel creeping into his voice, “"Let me ask you a very blunt question. Where are the managed care plans?"

The assistant attorney general hadn’t thought it necessary to produce them. He saw in the judge’s remark the caboose arriving and begged the court for a 30 day stay to gather documents that would comport with Article 10 of the rules of evidence, at which point there occurred this colloquy:

Judge Miller: "Well, the case has been pending since 2005.”

Hulin: “That's right. We think you're going to see eventually that we have a strong case and that we have … "

Judge Miller: (Interrupting) “Wasn't the time to show the court you had a strong case now?”

In his final decision, Judge Miller strongly rebuked Blumenthal’s office: “"When a party comes to court unprepared to address an important evidentiary issue which it well knew would be disputed at trial, and that party fails to prevail on the issue, the trial judge does not stop the proceedings and give the losing party time to correct the mistake. That is not how things work in our system of justice."

And Blumenthal dropped the case, deciding wisely not to appeal the court’s judgment until the stars drop from heaven, the usual recourse taken by his office.

Blumenthal’s office has pending, according to the attorney general’s most recent financial report, more than 36,000 cases. Perhaps the overload has fried the synapse of Blumenthal’s dozen or more litigators. It’s astonishing: Ignoring the basic rules of evidence is a little bit like ignoring icebergs on the high sea. It takes a titanic sized ego to do it. Judge Miller, among other members of the judiciary, is not unfamiliar with Blumenthal’s sometimes questionable methods, which include the presentation of defective affidavits in ex parte proceedings, on the basis of which judges authorize Blumenthal’s agents to impound company assets, leaving his hapless victims, already mutilated in searing media releases, unable to procure the services of competent lawyers such as Ross Garber.

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