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Javorski v. Nationwide Mutual Insurance Co.

November 6, 2006


The opinion of the court was delivered by: Judge Conaboy


Here we consider Defendant Nationwide Mutual Insurance Company's Motion to Disqualify David J. Selingo, Esquire and Attorney Selingo's Firm, (Doc. 27). With this motion, Defendant seeks disqualification based on the assertions that continued representation will violate Pennsylvania Rules of Professional Conduct addressing conflict of interest and both the Professional Rules and Local Rules of the Middle District of Pennsylvania addressing attorney as witness. (Id.) On September 22, 2006, Defendant filed a supporting brief with the motion, (Doc. 23), Plaintiff filed a responsive brief on September 28, 2006 (Doc. 32), and Defendant filed a reply on October 13, 2006, (Doc. 41). Therefore, this matter has been fully briefed and is ripe for disposition. For the reasons discussed below, we conclude that disqualification is not appropriate at this stage of the proceedings and deny Defendant's motion.

I. Background*fn1

A. The Accident and Plaintiff's Condition

The following facts are derived from Plaintiff's Complaint, (Doc. 1 Att.). Plaintiff was injured in an automobile accident on April 26, 2004, in Wyoming County, Pennsylvania. While traveling south on Route 29 en route to College Misericordia, Abdul Hussain, M.D., entered State Route 29 from a parking lot and, for unknown reasons, traveled across the northbound lane into the southbound lane striking the car behind Plaintiff's driven by Raymond Kuzma. After striking the Kuzma vehicle, Hussain's vehicle continued traveling northbound in the southbound lane and struck Plaintiff's vehicle head-on.

At the time of the accident, Plaintiff was operating a 1990 Toyota Camry owned by her father, John Javorski. There were also two other vehicles in the household owned by her mother, Ann Marie Javorski. All three vehicles were insured by Nationwide.

Plaintiff was treated at the scene by the Tunkhannock Community Ambulance. She was found in the driver's seat and had not moved. The ambulance crew described her as appearing confused and she complained of chest pain, left knee pain and bilateral wrist pain. She was immobilized on a backboard, extricated from the vehicle on the backboard and taken by ambulance to the Tyler Memorial Hospital Emergency Room.

Complaining of right rib and shoulder pain and left knee pain, Plaintiff's diagnosis was multiple contusions and Plaintiff was provided with Darvocet for pain. She was instructed to do deep breathing exercises and not to attend classes at College Misericordia for several days.

Two days later, Plaintiff went to her treating physician, John Gardner, M.D., whose diagnosis was chest pain, rule out fracture, shoulder contusion and left knee pain.

On June 3, 2004, Plaintiff went to the Geisinger Clinic Nephrology Department for a follow-up visit with Evan Norfolk, M.D., regarding kidney problems which pre-dated the accident. Plaintiff's kidney problems were related to long-term health problems. She was diagnosed with Wegener's Granulomatosis in 1992 - a disease which caused pulmonary problems and eventually destroyed both of her native kidneys.*fn2 Plaintiff had a kidney transplant at Geisinger Medical Center in the Spring of 1994. After several hospitalizations in 1994, she was hospitalized at Geisinger in 1997 and then again three years later from December 15, 2000, through December 22, 2000, at Stanford University Hospital in California. Following her return from California, Plaintiff was hospitalized at First Hospital from February 27, 2001, through March 7, 2001, with a diagnosis of major depression and social anxiety disorder. A renal scan performed on August 3, 2001, was interpreted as normal with normal profusion of the transplanted kidney. With this finding, Plaintiff had experienced no kidney difficulties for nearly four years.

In January 2002, Plaintiff had some renal problems. At March, April and September 2002 follow-up visits, Plaintiff's nephrology exams were normal.*fn3

During a visit to Dr. Norfolk on August 11, 2003, Plaintiff complained of some syncope,*fn4 and Dr. Norfolk referred her to her primary care physician. Otherwise, her renal function was normal. Her last visit to Dr. Norfolk before the accident occurred on April 6, 2004. At that time she complained of knee pain and problems with ambulating. Plaintiff's renal functioning was reportedly fine and she was referred to the Orthopaedic Department for her knee complaints.

At her next visit on June 3, 2004 - the first after the accident which occurred on April 26, 2004 - Plaintiff's Creatinine level was above normal and she complained of chronic fatigue. Because of the increased Creatinine level, Dr. Norfolk scheduled her for a renal biopsy. She was admitted to Geisinger as an inpatient on June 3rd and was released on June 4th. The biopsy was positive for rejection according to the discharge summary.

Plaintiff returned to be evaluated by Dr. Norfolk on June 11, 2004. He reviewed the pathology reports which resulted in his diagnosis of rejection as well as chronic nephropathy.*fn5 Dr. Norfolk indicated Plaintiff was suffering from a recent rejection with increased pain and Creatinine levels.

From the time of this diagnosis, Plaintiff has regularly been seen and treated for rejection and related and other medical problems including fibromyalgia. At times Plaintiff was treated on an inpatient basis. In the summer of 2005, Plaintiff was also diagnosed with shizophrenia paranoid type and bulimia nervosa. She was hospitalized for these conditions on both a voluntary and involuntary basis.

Some time between August of 2005 and January of 2006 Plaintiff was required to start dialysis treatments - treatments which continued at the time the Complaint was filed in this case on May 26, 2006. At the time the case was filed, Plaintiff was awaiting a donor kidney for transplant.

B. Nationwide's Conduct

At the time of the accident, Plaintiff was an insured under two automobile policies issued by Nationwide. Policy 5837C649497 provided underinsured motorist limits of $100,000/$300,000. The policy was stacked and covered two vehicles. Policy 5837B225456 had the same limits, was stacked and covered one vehicle. Therefore, Plaintiff was entitled to a maximum of $300,000 underinsured motorist benefits.

Plaintiff placed Defendant on notice of Plaintiff's underinsured motorist claim on December 7, 2004. Defendant denied coverage under one of the policies by letter dated January 13, 2005. By letter dated January 17, 2005, Plaintiff informed Defendant that the lack of coverage was not conceded and more investigation was necessary. By letter postmarked February 25, 2005, Defendant informed Plaintiff that it changed its position and would provide coverage under both policies.

By letter dated February 22, 2005, Plaintiff made a claim, with supporting medical records, for fibromyalgia and aggravation of pre-existing depression as a result of the accident. Following the receipt of an expert pathology report on March 29, 2005, Plaintiff notified Defendant that her post-accident kidney rejection, dialysis and need for a renal transplant were caused by the accident. In the correspondence, she also made a demand for the UIM policy limits.

The demand was valid for thirty days, and Defendant did not respond within that period except to notify Plaintiff that it had appointed counsel to defend the claim. Defendant appointed Michael Nelson, Esq., as counsel on Plaintiff's underinsured motorist claim.

Defendant did not comply with the neutral arbitrator provision of the policy in that it did not respond to Plaintiff's suggestions for a neutral arbitrator or suggest one of its own. Defendant participated in the selection of a neutral arbitrator only after Plaintiff filed a Petition to Compel Arbitration and Appoint Neutral Arbitrator. A neutral arbitrator was chosen in June 2005.

Regarding the gathering of medical records, Plaintiff signed an authorization on February 25, 2005. In June 2005, Defendant attempted to gather records from Geisinger but needed a specific release form from Plaintiff. By letter of June 24, 2005, Defendant informed Plaintiff that it was still awaiting records from Geisinger, Tunkhannock Community Ambulance, Advanced Pain Management Specialists, Tyler Memorial Hospital Radiology, Riverside Rehabilitation and several doctors. Plaintiff had sent records from many of these sources to Defendant on February 22, 2005.

In July 2006, Defendant inquired by telephone whether a claim for psychiatric injuries was being made. Plaintiff had made this claim on February 22, 2005. Defendant's record gathering was ongoing through February 2006.

Defendant submitted expert reports by the January 31, 2006, deadline set by the arbitration panel. The kidney experts -Doctors Elfenbein and Zappacosta - concluded that Plaintiff suffered from chronic rejection, rather than acute rejection traceable to the accident. The psychiatrist who performed the IPE, Dr. Toborowlsky, concluded that Plaintiff's psychiatric diagnoses predated the accident and her condition afterwards was very likely little different than it would have been had the accident not happened. Defendant's rheumatologist, Dr. Kohn, reported that, because he had been forwarded only psychiatric records, his evaluation was somewhat handicapped. Nevertheless, Dr. Kohn concluded that Plaintiff did not suffer from fibromyalgia as a result of the accident.

Plaintiff's experts were critical of Defendant's experts and concluded that Plaintiff's kidney rejection and fibromyalgia resulted from the accident.

By letter dated February 20, 2006, Defendant requested that the March 28th and 30th dates set for the arbitration hearing be continued, suggesting that the parties mediate the dispute. Plaintiff agreed to mediation by letter of February 23, 2006 - but only if the ...

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