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The Use of Depositions From
Other Cases to Prove Pattern
and Practice
By DL Law Group | October 15th, 2019 | Categories: Articles | Tags: DL Law Group
Articles

On February 3, 2002, a unanimous federal jury awarded our client,
Joan Hangarter, $7.7 million in damages against Paul Revere
Insurance and UnumProvident Corporation for bad faith denial of
disability bene�ts. The jury’s award included$5 million dollars for
punitive damages. The subject discussed in this article �gured
prominently during the course of the litigation.
We regularly hear about mergers and acquisitions. Unfortunately,
for plainti�s in insurance bad faith cases, that causes a lot of
trouble. For example, the plainti�s often �nd the company they
are suing is really owned and operated by another company.
Furthermore, that company may or may not be a party to their
lawsuit. Companies try hard to hide the ball on this issue,
especially if they are aware that the predecessor corporation has
made damaging admissions. Defendants try even harder to
separate themselves from the acts of the predecessor
corporation when there is any possibility of proving that the “bad
acts” committed by the succeeding company originated with the
predecessor. As an example, in 1997 Provident Life and Accident
Insurance Company acquired Paul Revere. Consequently, the new
company is Provident Companies. Provident Companies merged
with Unum in 1999 and the resulting company was named

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UnumProvident.
last count, the
following companies
all
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Email Address
owned or controlled by mega-disability insurance giant,
UnumProvident: American Integrity Insurance
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Company (owned by
Unum before it was acquired by Provident); Colonial Companies,
Phone Number
Inc. (owned by Unum before it was acquired by
Provident;)Colonial Life & Accident Insurance Company;
Message
Commercial Life Insurance Company; Equitable (block of
disability insurance acquired by Paul Revere;) General American
Life Insurance Company; John Hancock; Lincoln National; Mutual
of New York; New York Life Insurance Company; National Life of
Vermont; NW Life (Reliastar)(best guesses to date is that this is
probably Northwestern; Paul Revere; Protective Life; Provident
Life and Accident; Provident Mutual; The New England and; Union
Life Insurance Company of America. By the time you read this,
there may be more companies added to or subtracted from this
constellation.
4+3= ?
Whether or not you are able to enter evidence that will help you
to connect the dots from Provident Life and Accident’s plan for
unfairly terminating through Paul Revere to Unum or any of the
companies listed above, is directly related to your ability to
convince the judge of the nexus between the facts of your case
and the evidence you hope to introduce even if the evidence or
testimony was obtained in a di�erent case and bears the name of
a di�erent corporate entity.

Introducing Past Deposition Testimony
Obtained In A Di�erent Case
The rules governing the admission of past deposition testimony
as an exception to the hearsay rule in both State and Federal
court are similar. Federal Rule of Evidence 804(b)(1) states that
former testimony given under oath at another hearing, whether in
the same case, a di�erent case, or in a deposition, may be
admissible in the current proceeding provided:
���the witness is unavailable; and
���the party against whom the testimony is o�ered had an
opportunity and similar motive to develop the testimony by
direct, cross or redirect examination. Thus, under this Rule,
the testimony may be o�ered against the party by whom it
was previously o�ered; or against a successor in interest to
a party to the prior action who had a similar motive and

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opportunity
to develop the Attorneys
testimony in the
previous
action. Case Results
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Moreover, testimony so o�ered is admitted as an exception
insurance
to the hearsay rule.Similarly, in State Court
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under Evidence
Code 1291(a)(2) and 1292(a)(3), and California Code of Civil
Procedure Section 2022, depositions from a di�erent lawsuit
can be introduced into evidence if the deponent is presently
“unavailable” to testify and the party against whom
deposition testimony is o�ered either o�ered it in evidence
in the former action or had the right and opportunity to
cross-examine the deponent with the same motive and
interest as he or she has in the present action or the issue
of the testimony is such that some party to the former
action, who had the same interest or motive as the party
against the testimony is now being o�ered had the same
motive, right and opportunity to cross-examine the
witness.In the Hangarter trial, mentioned above, the Plainti�
sought to introduce the prior deposition testimony of Dr.
William Feist, a past medical director and Vice President of
Provident Life and Accident, the predecessor corporation to
�rst Provident Companies and then UnumProvident. Plainti�
wanted this testimony on record as evidence of the ruthless
and unfair claims handling initiatives that the plainti� used.
This could then show the pattern and practice brought into
being by then Vice President of Claims for Provident Life and
Accident, Mr. Ralph Mohney. Plainti� argued that the above
deposition testimony demonstrated the importance of Mr.
Mohney to her case. Mr. Mohney was in charge of the claims
department prior to the acquisition of Paul Revere by
Provident and the creation of Provident Companies. Plainti�
had introduced evidence that Mr. Mohney instituted changes
to the claims department during that period of time, he was
part of the transition team during the merger of Provident
and Paul Revere insurance companies, he remained in
charge of the claims department and he had substantial
settlement authority over claims such as Dr. Hangarter’s.As
with the case in which Dr. Feist’s previous deposition had
been taken, the issue of claims philosophy in general, and of
the changes made by Mr. Mohney regarding said claims
philosophy in particular, were central to the testimony. Dr.
Feist’s observations were directly relevant to these issues,
and UnumProvident, a named defendant in the Hangarter
lawsuit had the opportunity to cross-examine him about
these exact issues. Plainti� argued that the fact that the
lawyers representing UnumProvident at trial had chosen not

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to attend
theOverview
deposition was
irrelevant. After
a review
of the Case Results
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deposition testimony, including a vigorous cross-examination
by another UnumProvident attorney, theContact
Court agreed with
the Plainti�.Defendants strenuously argued, as they did
throughout the trial, that Provident Life and Accident
Insurance Company, UnumProvident and Paul Revere were
three separate entities and since Dr. Feist had worked for
Provident Life and Accident, his testimony was irrelevant.
Defendants also argued that because his deposition had
been noticed and taken in another individual disability case
in which UnumProvident, but not Paul Revere, was a
defendant, they didn’t have an opportunity to cross examine
the witness. Additionally, they also argued, erroneously, that
Dr. Feist had not been on plainti�’s witness list.
Relying on the Ninth Circuit case of Murray v. Toyota Motors
Distributors, Inc. 664 F.2d 1377, 1379-80 (1982), In Re IBM
Peripheral EDP Devices Antitrust Litigation, 444 F.Supp.110,
113 (1978), and Weinstein On Federal Evidence,
section 804.044(a) the Judge ruled that Dr. Feist’s deposition
was admissible. In Murray the appellate Court ruled that
former deposition testimony was properly admitted because
the parties had a similar motive to cross examine in both
cases. The Court held that the motive need only be “similar,
not identical.” In IBM, the Court held that the exception to
the hearsay rule for former testimony is when “a party’s
predecessor in interest in a civil action or proceeding had an
opportunity and similar motive to examine the witness”

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In Hangarter the Court found that UnumProvident had
su�cient opportunity to cross-examine Dr. Feist and that
the interests from which he was cross-examined were
essentially identical to the interests of Paul Revere and
UnumProvident in the instant case. Moreover, the Court also
stated that Paul Revere and UnumProvident’s argument that
the companies had nothing to do with each other was
“disingenuous.”
If you are seeking to introduce past deposition testimony
from another matter into your trial be sure to look for the
way that you can prove that the interests of the party who
cross-examined the deponent were the same if not identical
to that party in your trial. Do your homework. Know, before
you go to trial, how your defendant may be related to other
defendants who have been sued under similar facts. And be

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sure toFirm
list the
deponent asAttorneys
a witness.
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By admitting Dr. Feist’s testimony, plainti�
was able to
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introduce evidence of UnumProvident’s pattern and practice
of claims handling su�cient for the jury to conclude that
the defendants had acted with malice fraud or oppression in
denying Dr. Hangarter’s disability bene�ts.
Dr. Feist testi�ed that “Before Chandler and Mohney came to
their positions at Provident, claims were handled in a fair
and above-board way”. There was “never anything about
shredding documents and not putting in information,” he
said.
He testi�ed that to instruct or direct �eld claims adjusters
to not put conclusions in writing but instead to
communicate them verbally was at in violation of the
Company’s duties to their policyholders and was “unethical.”
Mr. Mohney, said Feist, even issued an edit “prohibiting
doctors from writing on a �le that an insured “was disabled”.
“I recall speci�cally a case,” he said, “probably in November
of ’95 in which there was a very unfortunate man in his mid
40’s, who had had several myocardial infarctions and had
severe incapacitating angina – this man literally could not
walk across the length of the room without getting severe
chest pain.
“I wrote on the �le that this man is permanently and totally
disabled, just as clear as I could write it. I was called on the
carpet by Mr. Mohney saying ‘Dr. Feist you are not to write
on any �le. This �le or any �le, that this person is disabled.
That is for the claims department to make the decision.
“That sounds like a simple procedural thing but it is really a
profound philosophical change….
“Well with that change Mr. Mohney and his associates could
make the call. Even if the person is disabled for some
reason, (if) they didn’t want to permit disability. They could
make the �nal call.
“I think that is a small example, but that is a good example
of the philosophy change that came in when. Mr. Mohney
(and Mr. Chandler) came on board.”

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Dr. Feist
alsoOverview
testi�ed in hisAttorneys
deposition that
Roundtable
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Meetings were held for the purpose of �nding “any way or
modality” to try to terminate claims: “Questioning
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the
integrity of the treating physician, using surveillance
inappropriately, getting an IME to prove their case, saying
that the individual was fraudulently trying to get money out
of Provident. All of those modalities were used.

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Dr. Feist himself personally attended Roundtable Meetings
that had pro�led over 250 claims, targeting high-value
claims and brainstorming for ‘any excuse or pretext’ to cut
them o�.
“The whole tenor of the meeting was we have got to �nd
some way to terminate(this) claim whatever it takes or
however we can do it.”
As you can see from this small excerpt, the testimony was
invaluable to plainti�’s case both for bad faith and her claim
for punitive damages.

INTRODUCING DOCUMENTS OBTAINED
THROUGH DISCOVERY IN OTHER CASES
We have been in the position of suing the same defendant or
defendants many times. Through discovery in past cases we have
obtained thousands of pages of internal documents, some very
damning to the defendants. In such circumstances, defendants
argue that the documents are not relevant to the instant case
because a “di�erent” insurer denied the claim. In addition,
although we have been able to obtain stipulations that the
documents will be deemed “produced” in whatever current
litigation we are engaged in, at trial the insurers argue that the
documents lack authenticity.
With regard to the relevance objection, as with prior deposition
testimony, it will be necessary to provide a nexus between the
documents of the predecessor or successor corporation and the
current defendant or defendants. In our case we used deposition
testimony of the Head of Claims, Ralph Money, stating that he
was in charge of the philosophy for all of the individual claims
departments for all of the Provident companies. Since many of
the documents we sought to admit had been authored by Mr.

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Money
his claimsAttorneys
handling philosophy
and
his
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intention to save the company “30 to 60 million dollars a year”
through his claims initiatives, the Judge agreed
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that the
documents were relevant to Paul Revere’s current claims handling
practices.

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Once the relevancy hurdle has been past, it is also necessary to
authenticate the documents in order for them to be admitted
into evidence. It may seem incredible but even though the
documents were produced by one of the named defendants,
defendants still argued that the documents were not authentic.
Under the Federal Rules of Evidence, “there is no single way to
authenticate evidence and, in particular, direct testimony of
custodian or percipient witness is not a sine qua non to the
authentication of a writing. Fed.Rules Evid.Rule 901(a), 28
U.S.C.A.” U.S. v. Holmquist 36 F.3d 154 C.A.1 (Mass.), 1994.
Moreover, the burden of authentication of evidence does not
require proponent to rule out all possibilities inconsistent with
authenticity or to prove beyond any doubt that the evidence is
what it purports to be; rather, standard for authentication, and
hence for admissibility, is one of reasonable likelihood. Fed.Rules
Evid.Rule
901(a), 28 U.S.C.A. Alexander Dawson, Inc. v. N.L.R.B. 586 F.2d 1300
C.A.9, 1978.
The issue for the trial judge under Rule 901 is whether there is
prima facie
evidence, circumstantial or direct, that the document is what it is
purported to be. If so, the document is admissible in evidence.
See, e.g., United States v. Wilson, 532 F.2d 641, 644-45 (8th Cir.),
Cert. denied, (1976); United States v. Scully, 546 F.2d 255, 269 (9th
Cir. 1976), Cert. Denied. It is then up to the jury to make its own
determination of the authenticity of the admitted evidence and
the weight which it feels the evidence should be given.
At trial in the Hangarter case, counsel for Paul Revere and
UnumProvident constantly objected to the authenticity of the
very documents produced by Provident and UnumProvident in
other cases because they had not been produced in
the Hangarter case. The Judge found, however, that the Plainti�
had authenticated the documents in a number of di�erent ways

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which
be su�cient Attorneys
to admit the documents
into
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evidence. Among the ways cited by the Judge was the fact that
the same documents had been admitted into
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evidence by another
Federal Judge; that the documents were produced in related
cases, that the documents had the heading of Provident and a
Custodian of Records had testi�ed, albeit in another case, that
the documents had been produced by Provident.

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