DESPITE THE FACT THAT THE PLAINTIFF NEVER PLED THE CLAIM.
In a bad faith action against a medical malpractice carrier, a U.S. Magistrate confronted and resolved the following discovery issue concerning evidence of past cases in which the defense lawyer was replaced:
Interrogatory No. 7
The Surgery Center asks defendants to identify all cases in which they retained [L & G] and in which attorney [J.L.] was removed from the case during litigation. The Center argues that the replacement of the attorney who evaluated the case as having a $10 million value with one who estimated a 90% chance of victory shows defendants' total control of the defense. The Surgery Center further contends that this discovery is relevant to its allegations of a pattern and practice of bad faith claims handling. [Dkt. #60, at 9]. But, contrary to the Center's brief, the Complaint does not allege a “pattern and practice of unreasonable claims handling.” Moreover, The Surgery Center does not make an argument that past practices might be relevant in the context of Fed.R.Evid. 406, (further citations omitted).
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Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged or supported would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice. Hormel v. Helvering, 312 U.S. 552, 556–557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). Here its application seems somewhat ill advised. The information sought is relevant to the meaning to be accorded by the jury to the fact—if indeed it is a fact—that in one or more cases [J.L.] was replaced before trial (or perhaps during trial) by [L & G].
The motion to compel is granted as to Interrogatory No. 7.
Surgery Ctr. at 900 N. Mich. Ave., LLC v. American Physicians Assur. Corp., No. 15 cv 4336, 2016 WL 6962840, at *5-*6 (N.D. Ill. November 29, 2016) (Cole, USMJ) (emphasis added).
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