Judge slams lawyers' delays

Delivering a blistering rebuke, a federal judge slammed some of the region's top law firms and lawyers, saying they deliberately dragged their feet in producing evidence in a class-action lawsuit.

After describing John S. Summers, a respected member of the Philadelphia law firm of Hangley Aronchick, Segal & Pudlin, as "evasive," the judge continued: "Summers crossed the line from zealous advocacy to sanctionable conduct. I conclude that he acted in bad faith."

All the lawyers plan to appeal the sanctions ordered by U.S. District Judge James Knoll Gardner. The lawyers and their clients could face as much as $5 million in damages based on the judge's order.

What the judge describes as unnecessary delay, the attorneys say represents good-faith lawyering in a case with difficult issues and computerized record keeping. The attorneys are representing insurance companies who are being sued by doctors.

"We shouldn't put lawyers in a position where they are looking over their shoulder as long as they are proceeding in good faith," said Lawrence J. Fox, a partner in Philadelphia's Drinker Biddle & Reath. He represents some of the lawyers criticized by the judge in his Friday opinion.

The case began in 2001, when Natalie M. Grider, a family practitioner in Kutztown, sued the insurers, saying that they were not properly reimbursing her for her services. It was certified as a class in December and now involves about 6,000 Pennsylvania doctors, including some in Montgomery and Bucks Counties.

While judges sometimes order sanctions against attorneys in cases, it's rare and noteworthy when it happens, experts say.

"It is sufficiently unusual that the cases become notorious throughout the litigation bar," said Eleanor Myers, an assistant professor of law who teaches ethics at Temple University's law school.

What makes this case even more noteworthy are the people involved - many well-known and well-regarded in the community, based on interviews with a variety of local experts on ethics and disciplinary proceedings.

Summers, well-known in his own right, is the brother of Harvard University's former president, Lawrence Summers. Daniel B. Huyett, of Reading, is the son of a former federal judge Daniel H. Huyett III, who is deceased. He and Jeffrey D. Bukowski are shareholders in the firm Stevens & Lee. Sandra A. Girifalco is a partner at Stradley Ronon Stevens & Young in Philadelphia.

The judge also rebuked their clients, Keystone Health Plan Central Inc., Capital Blue Cross, and Highmark Inc., the Pittsburgh health insurer hoping to merge with Independence Blue Cross in Philadelphia. The insurers declined to comment.

"I think Judge Gardner got it right," said Grider's attorney, Kenneth A. Jacobsen of Media. "There was a concerted effort to protract the proceedings to wear us out."

Delaying is a litigation tactic, Myers said, but not an ethical one. Sometimes clients pressure their attorneys into playing hard ball. "It puts the lawyer in a dilemma," she said.

But that's not the case here, said lawyers for the lawyers.

"Summers teaches appellate advocacy at Penn Law School. He has been the chair of the professional responsibility committee for the Philadelphia Bar Association," said William T. Hangley, chairman of Hangley, Aronchick. "This is not someone who would not lightly violate a professional rule. He has been wrongly vilified."

In fact, "the chilling effect of a decision like this is quite profound," Fox said. He represents Stevens & Lee, Huyett and Bukowski.

"I think the lawyers did not only what they were supposed to do, but what they are required to do," he said. "This turns conduct which we thought was perfectly proper in zealous representation into actionable behavior.

Jacobsen doesn't buy it. Civil court rules give plenty of leeway for zealous advocacy, he said.

In this case, he said, the lawyers abused the process.

Jacobsen pointed to one example the judge described in his 77-page opinion. For months, Capital Blue Cross, of Harrisburg, had said it didn't have material Jacobsen requested. Then after a special discovery master had been assigned to the case, "Huyett announced that Capital had also just located up to 60 boxes of material," the judge wrote.

Fox said that Huyett turned over the material as soon as the client located it.

The judge said the attorneys and clients must divide up the plaintiff's costs in the case, which could amount to $5 million, Jacobsen said.

Keystone Health Plan Central Inc., Capital Blue Cross, and Summers and his firm must pay 25 percent each. Highmark will have to pay 10 percent. Girifalco and her firm must pay 10 percent, and Huyett, Bukowski and Stevens & Lee have been assessed 5 percent.