Free Statement - District Court of Colorado - Colorado

Case 1:00-cv-02098-REB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02098-REB-MJW KELLY FINCHER, by her guardian, JAMES FINCHER, on behalf of herself and all others similarly situated, Plaintiffs, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, a New Jersey Corporation, Defendant.

PLAINTIFFS' FED.R.CIV.P. 26(a)(3) DISCLOSURES

Plaintiffs Kelly Fincher, by her guardian, JAMES FINCHER, by their undersigned attorneys, THE CAREY LAW FIRM, submit their Fed. R. Civ. P. 26(a)(3) Disclosures as follows: (A) WITNESSES TO BE CALLED AT TRIAL 1. Plaintiffs' Non-Expert Witnesses: (a) Witnesses Who Will Be Called: 1) James Fincher 436 Longleaf Court O'Fallon, Illinois 62269 (618) 206-8616 Christine Fincher 436 Longleaf Court O'Fallon, Illinois 62269 (618) 206-8616

2)

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3)

Kelly Fincher 436 Longleaf Court O'Fallon, Illinois 62269 (618) 206-8616

4)

Mr. Eugene Brown 34 Blair Court Ocean Township, NJ 07712 Counsel for the defense has indicated that Mr. Brown will be made available in person during the Plaintiff's case in chief.

(b)

Witnesses Who May Be Called 1) Linda Bradley Senior No Fault Representative Prupac Insurance and Financial Services PO Box 5898, Denver, CO 80217 (800) 437-3535 Ext. 4078 Greg Sanders Prupac Insurance and Financial Services PO Box 5898 Denver, CO 80217, (800) 437-3535

2)

3)

Any other witness listed by Defendant

2.

Plaintiffs' Expert Witnesses: (a) Witnesses Who Will Be Called: 1) Richard M. Hodges, Esq. 5353 West Dartmouth Avenue, Suite 304 Denver, Colorado 80227-5516 (303) 988-1972

Mr. Hodges has been specially retained as an expert pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure and will testify consistent with his reports issued in this case and his testimony at the previous hearing, including any his report dated August 10, 2007, following the long delayed 2

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deposition of Prudential witness Gene Brown.

2)

Nancy Powers, Psy.D. 3655 Lutheran Pkwy Ste 401 Wheatridge, CO 80033 (303)692-8888

Dr. Powers has been specially retained as an expert pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, to conduct a neuropsychological evaluation and consultation of Kelly Fincher, and will testify consistent with her report of March 1998, and any information adduced through a subsequent records reviews and/or examinations. She will testify by videotape. 3) Dennis J. Matthews, M.D. Children's Hospital 1056 E. 19th Avenue Denver, Colorado 80218 (303)861-3907

Dr. Matthews is the Medical Director of The Children's Hospital Rehabilitation Center. He is also Chairman of the Department of Rehabilitation at Children's Hospital and Chairman of the University of Colorado's Department of Physical Medicine & Rehabilitation. Dr. Matthews treated Kelly Fincher and has knowledge and experience in the treatment and rehabilitation of children. Dr. Matthews will testify consistent with Plaintiff's medical billing, records and reports, including but not limited to his own, concerning his treatment of Ms. Fincher, the impairment resulting from injuries sustained in the underlying accident, the reasonableness and necessity of Kelly Fincher's past medical treatment and expenses, and her future medical treatment and expenses. He will testify in person. 4) Bonnie Ruth, Ph.D. Bonnie Ruth and Associates, Ltd. 3801 E. Florida, Suite 503 Denver, CO 80210 (303)733-7714

Dr. Ruth is a vocational rehabilitation consultant and may testify consistent with her reports of June 11, 1998 and January 30, 2002, regarding her preparation of a vocational evaluation and life care plan for Kelly Fincher. 3

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She will testify in person. 5) Jerome F. Sherman, Ph.D. 9947 Essex Street Omaha, NE 68114 (402) 397-6698

Dr. Sherman has been specially retained as an expert pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, to prepare a projection of economic loss report regarding Kelly Fincher, and will testify consistent with his reports of August 16, 2004, and March 29, 2007, and any information adduced through subsequent records reviews. He will testify in person. (B) DESIGNATION OF WITNESS TESTIMONY TO PRESENTED BY DEPOSITION

1. Video Deposition of Nancy Powers, PA-C, Psy.D., taken August 14, 2007, was taken in order to preserve her testimony for trial, and therefore is designated in its entirety. 2. Video Deposition of Eugene Brown, taken July 25, 2007 is designated in its entirety. (Counsel for the defense has indicated that Mr. Brown will be made available in person during the Plaintiff's case in chief; however, should Mr. Brown not be present, Plaintiffs reserve the right to present Mr. Brown's testimony by videotape deposition). (C) IDENTIFICATION OF EXHIBITS

The parties are working to refine the list of exhibits necessary for trial, and therefore will produce at the Trial Preparation Conference on September 28, 2007, a list of stipulated exhibits, as well as Plaintiff's and Defendant's disputed exhibits, in accordance with REB practice standards. Additionally, the parties anticipate that by September 17, 2007, they will exchange exhibits lists designating those exhibits which the parties expect to offer, and those which the parties may offer if the need arises. 1. Certified Copy of Prudential Insurance Policy, Declarations Sheet and Policy Renewal, as issued to Anthony Bekeshka for the date of Kelly Fincher's injuries, including PAC 186 Ed. 4/86 (28 Pages); PAC 190/CO Ed. 1/89 (11 Pages); PAC 226 CO Ed. 8/99 (6 Pages). 2. 3. Application for PIP Benefits dated May 19, 1994 (1 Page). Prudential Memorandum to Gene Brown from Linda Bradley (3 Pages). 4

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4. Page).

July 20, 1994 correspondence from Linda Bradley to Mr. and Mrs. Fincher (1

5. TCH Physicians Group Billing Invoice of 05/11/95 and Letter from Prudential to TCH Physicians indicating Benefits Exhausted (2 Pages). 6. 7. 8. Hand Written P.I.P. Payment Record from The Prudential (1 Page). Claim Suffix Display from Prudential (1 Page). Claim Suffix Display from Prudential (1 Page).

9. Medical Bill Summary of Kelly Fincher in the amount of $215,310.61 with attached bills (to be updated) (73 Pages). 10. Deposition Transcript of Kenneth L. Kassover, Ph.D. taken in the matter of Fincher v. Bekeshka (95CV2233) dated November 7, 1997, (49 Pages), and curriculum vitae of Dr. Kassover (11 Pages). 11. The PIP file of Prudential pertaining to Kelly Fincher, including, but not limited to, all medical bills, letters of exhaustion, PIP payout sheet. (In Defendant's Possession) 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. PAC 3821 CO (Ed. 5/93) (Bates 00438-00439 ­ 2 Pages). PAC 3821 CO (Ed. 8/94) (Bates 001456-001457 ­ 2 Pages). PAC 3821 CO (Ed. 3/97) (2 Pages). PAC 3821 CO (Ed. 1/98) (2 Pages). PAC 3821 CO (Ed. 1/99) (2 Pages). PAC 3821 CO (Ed. 4/99) (2 Pages). PAC 226 CO (Ed. 8/94) (4 Pages). PAC 226 CO (Ed. 1/98) draft (6 Pages) PAC 226 CO (Ed. 8/99) (7 Pages). PAC 226 CO (Ed. 2/00) (8 Pages). PAC 3934/CO (Ed.1/98) draft (7 Pages).

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23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 1106-1107). 33. 34.

PCD-3492 Ed. 12/98 (2 Pages). PCD 3601 CO Ed. 10/99 (1 Page). PCD 3601 CO RV Ed. 10/99 (2 Pages). PCD 2990 Ed. 11/99 (1 Page). PCD 3670 CO Ed. 3/00 (2 Pages). Getting Started (1 Page) Prudential Car Policy Parts 1,2 & 3, PAC 186 Ed. 4/86 (16 Pages). Prudential Car Policy Parts 4, 6 & 7, PAC 190/CO Ed. 5/93 (11 Pages). 11/28/89 Memorandum re: Colorado APIP Changes (1 Page, Bates ). 12/19/89 Prudential P&C Bulletin Re: PIP & APIP Changes (2 Pages, Bates

January 1, 1990, P&C Bulletin (2 Pages). January 24, 1990 Letter from William Jervis, Division of Insurance to Mary

Ellen Boyle (1 Page, Bates 1087). 35. January 18, 1990, DOI Letter from William Jervis to Everett Truttmann at

State Farm (1 Page). 36. 37. 38. 39. Bates 1134). April 27, 1990, Important Notice CO 3-90 (1 Page). Car Rule Manual PIP and APIP ­ Revisions to Policy (1 Page, Bates 1120). 01/23/91 ­ ISO Circular (2 pages, Bates 683-684). April 19, 1991, Memorandum from Gene Brown to Mary Henry (1 Page,

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40.

April 23, 1991, Memorandum from Gene Brown re: Colorado PIP and

APIP (1 Page, Bates 1134). 41. 42. May 17, 1991, Memorandum re: Required Actions (1 Page, Bates 1183). May 17, 1991, Memorandum for File re: Colorado Car and RV Policies

Clean-up (6 Pages, Bates 1076-1081). 43. October 7, 1991, Memorandum from Louis Zuccaro to Tom Gibboney (1

Page, Bates 1135). 44. 07/91 ­ Division of Insurance Bulletin 7-91 ­ Filings Not Required to be Made by Law (1 Page). 45. 08/12/91 Email from Gibboney re: CO APIP Project 91-115, 91-051 (1 Page, Bates 792). 46. 799). 47. 48. Application Insert with hand-written revisions (1 Page, Bates 1146). October 7, 1991, Email re: Colorado PIP & APIP Clean-Up Changes (1 09/13/91 Automobile Systems Specifications (6 Pages, Bates 790, 795-

Page, Bates 1135). 49. April 10, 1992, Alliance of American Insurers Enacted Law Bulletin No. 92-

143 (7 Pages). 50. June 30, 1992, Bulletin 9-92 (2 Pages) and June 30, 1992, Emergency

Regulation 92-E-1 (4 Pages, Bates 518-521). 51. 52. July 29, 1992, ISO Circular (17 Pages). July 15, 1992, Division of Insurance ­ Questions & Answers about the New

Form Filing System in Colorado (5 Pages, Bates 513-517). 53. October 15, 1992, Email re: Colorado Auto (1 Page, Bates 564).

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54. Bates 522). 55. 56. 57. 58. 59. 60.

October 26, 1992, Prudential Filing of Auto Dec Pages Returned (1 Page,

November 3, 1992, Email re: Colorado PIP/APIP (1 Page, Bates 565). 11/92 ISO Guide to Colorado State Filing Handbook (1 Page, Bates 498). 12/92 ISO Personal Vehicle Manual Exception Pages (1 Page, Bates 553). January 11, 1993, Email from Henry re: CO PIP (1 Page, Bates 497). January 20, 1993, Email re: CO PIP (1 Page, Bates 496). February 12, 1993, Email re: CO PIP and suggestion of dropping extended

coverage option (1 Page, Bates 495). 61. February 24, 1993, ISO Circular and February 26, 1993, ISO Circular (2

Pages and 3 Pages). 62. April 23, 1993, ISO Circular and May 24, 1993 & two May 25, 1993 ISO

Circulars (25 Pages). 63. 64. 65. 66. Bates 284). 67. 68. 69. (2 Pages). October 26, 1993, Important Notice CO 6-93 (9 Pages). 11/93 Memo re: CCO PIP (2 Pages, Bates 336-337). 11/93 Colorado Automobile Private Passenger Insurance Certification Form PAC 3821 CO (Ed. 5/93) (2 Pages, Bates 438-439). Car Rules Manual Ed. 5/93 (2 Pages). June 23, 1993, Email re: PIP New Project (1 Page, Bates 491). October 22, 1993, Letter from DOI re: Car & RV Rulings and Rating (1 Page,

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70.

November 5, 1993, P&C Bulletin re: PIP, APIP and UM Revisions/Form Lists

Attached (10 Pages, Bates 1418-1427). 71. P-1603). 72. 73. 74. 75. June 7, 1994, Email re: CO PIP (1 Page, Bates 121). June 9, 1994, Letter to DOI (1 Page, Bates 125). June 16, 1994, P&C Bulletin #94-187 (11 Pages). July 1, 1994, Important Notice CO 5-94 re: Colorado Rate Revision and PIP, Internal correspondence from 12/13/93 to 3/3/94, (4 Pages, Bates P-1600 to

APIP and UM Changes (6 Pages). 76. 77. June 9, 1994, Revised Forms Listing for DOI (3 Pages). July 7, 1994 Email re: CO RV Forms and Renewals PAC 3821 CO Ed. 5/93

(1 Page, Bates 119). 78. July 8, 1994 P&C Bulletin 94-187 re: PIP, APIP and UM Revisions (12

Pages, Bates 1428-1439 and 3 Pages, Bates 108-110). 79. 80. 81. 82. 83. 84. 85. Internal Correspondence from 5/16/94 to 5/26/94 (9 Pages). Internal Correspondence from 5/18/94 to 5/23/94 (5 Pages). Internal Correspondence from 5/24/94 to 5/.26/94 (7 Pages). January 17, 1995, P&C Bulletin 95-020 (2 Pages). January 30, 1995, Message Criteria Input Brief (2 Pages). December 31, 1995, Prudential Market Conduct Examination (59 Pages). December 31, 1996, Midwest Mutual Insurance Company Market Conduct

Examination (13 Pages).

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86. 87. 88. 89. 01961). 90.

3/21/1997 P&C Bulletin 97-117 (1 Page). November 3, 1998, P&C Bulletin # 98-380 (2 Pages). April 9, 1998, Division of Insurance filing letter from Mary Mosca (2 Pages). Internal correspondence from 10/1998 (5 Pages, Bates # P-01957 to P-

Internal correspondence from 10/1/1998 to 1/1/1999 (4 Pages, Bates # P-

01968 to P-01971). 91. 92. 93. Car Rules Manual Ed. 1/98 (2 Pages). January 6, 1999, P&C Bulletin 99-004 (2 Pages). ISO Circulars dated April 20, 2001 (2 Pages); May 2, 2001 (5 Pages); July

2, 2001 (3 Pages); August 13, 2001 (3 Pages); August 13, 2001 (47 Pages); August 15, 2001 (3 Pages) and August 23, 2001 (3 Pages). 94. thereto: a. b. c. d. e. f. 95. James Fincher Anthony Bekeshka Carl Mayer Tom Gibboney Mary Rowe Mary Henry Liberty Mutual Check No. 60155353, dated March 28, 2005, in the amount Deposition Transcripts taken in this matter (along with all exhibits attached

of $92,500.00, payable to "JAMES EDWARD FINCHER GUARDIAN OF KELLY D

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FINCHER & CHAMPUS FISCAL INTERMEDIARY CO CAREY LAW FIRM," annotated on stub portion of check "IN PAYMENT OF SETTLEMENT." 96. Letter from Cliff Latiolais to Dan Rector dated March 31, 2005, regarding

Prudential's check in the amount of $92,500.00 for the difference between the PIP benefits paid & the aggregate limit on such benefits. 97. Letter from Cliff Latiolais to Dan Rector dated April 14, 2005, regarding

counsel's return of check, erroneous reference to "settlement" on check, and lien rights of CHAMPUS. 98. Letter from Dan Rector to Clifton Latiolais dated April 19, 2005, regarding

agreement to accept payment of $92,500.00 without reservation, not constituting settlement, and without affect of CRS 10-4-708 remedies; and addressing concerns of Defendant counsel re CHAMPUS interests in Kelly Fincher's claims, remaining wage loss/diminution claims. 99. Letter from Dan Rector to Clifton Latiolais dated May 9, 2005, enclosing

U.S. v. Allstate Insurance, U.S. v. R & D Transportation, Inc., 573 F. Supp. 142 (1983), regarding restrictive endorsement of the check previously provided, and requesting reissue of check without restrictions. 100. Letter from Dan Rector to Clifton Latiolais dated March 14, 2006, regarding

monies owed to Kelly Fincher regardless of additional amounts due to be determined at trial. 101. Letter from Dan Rector to Clifton Latiolais dated March 16, 2006, regarding

alternative calculations of statutory interest due.

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102.

Letter from Cliff Latiolais to Dan Rector dated April 12, 2006, enclosing a re-

issued check in the amount of $92,500.00 from Prudential. 103. Liberty Mutual check number 60370327, dated March 23, 2006, in the

amount of $92,500.00, payable to "CAREY LAW FIRM AND JAMES FINCHER AS GUARDIAN FOR KELLY FINCHER." 104. Letter from Dan Rector to Clifton Latiolais dated April 24, 2006, concerning

delay of over a year in payment of benefits owed to Kelly Fincher, Prudential's intention to appeal not relevant to issue of what monies owed by Prudential once effective date of reformation determined by trial court, concerns of bad faith. 105. Letter from Cliff Latiolais to Dan Rector dated May 11, 2006,

acknowledging Prudential has agreed to pay the statutory interest on benefits recovered. 106. Liberty Mutual check number 60405305, dated May 22, 2006, in the

amount of $202,000.00, payable to "CAREY LAW FIRM AND JAMES FINCHER AS GUARDIAN FOR KELLY FINCHER." 107. Letter from Cliff Latiolais to Dan Rector dated May 30, 2006, enclosing

Prudential's check for statutory interest on benefits recovered, in the amount of $202,000.00 108. 109. 110. 111. 112. Timeline of relevant events. Any discovery response or deposition transcript required for impeachment. Defendant's Interrogatory Answers. Defendant's Response to Request for Production of Documents. Defendant's Responses to Plaintiff's Request for Admissions.

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113. Pages). 114.

Department of Human Services Office of Rehabilitation Services (14

Letters from the Department of Army dated August 28, 1998 and

September 21, 1998 (3 Pages). 115. Defendant. Respectfully submitted this September 13, 2007. Any exhibits identified in the 4th Amended Final Pretrial Order by

s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Steve W. Berman, WSBA #12536 HAGENS BERMAN, L.L.P. 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 L. Dan Rector FRANKLIN D. AZAR & ASSOCIATES, PC 5536 Library Lane Colorado Springs, CO 80918 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on this September 13, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System, which will send notification to the following email addresses: [email protected] s/Leif Garrison Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected]

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