Pfab v. United Wisconsin Ins. Co., C10-1024

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtJON STUART SCOLES
Docket NumberNo. C10-1024,C10-1024
Decision Date13 March 2012

CO., d/b/a UNITED HEARTLAND, Defendant.

No. C10-1024


Dated: March 13, 2012


On the 9th day of March 2012, this matter came on for telephonic hearing on the Motion in Limine (docket number 28) filed by the Plaintiff on February 17, 2012, and the Motion in Limine (docket number 32) filed by the Defendant on the same date. Plaintiff Marshalle Pfab was represented by her attorney, Rand S. Wonio. Defendant United Wisconsin Ins. Co. d/b/a/ United Heartland ("United Heartland") was represented by its attorney, Patrick D. Smith.


Pfab's Motion in Limine is in two parts: First, Pfab asks that United Heartland be prohibited from "relitigating" whether or not she sustained a permanent "TMJ injury" on the job. Second, Pfab asks that the Court prohibit expert testimony by John Bickel, or otherwise instruct the jury regarding the limited purpose for which it can be used.

A. "Relitigating " Pfab's Work-Related Injury

On November 5, 2006, Pfab was assaulted during the course of her employment, when she was kicked in the face by a juvenile. Pfab had a pre-existing right-sided temporomandibular joint ("TMJ") condition. Following a hearing, Deputy Workers'

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Compensation Commissioner Stan McElderry filed an arbitration decision on August 21, 2009, finding that "the November 5, 2006 injury permanently exacerbated a pre-existing condition."1 In her motion, Pfab asserts that United Heartland "is legally precluded from re-litigating these issues."2

Referring to the causal connection between Pfab's TMJ and her work injury, United Heartland's counsel assured the Court at the instant hearing that "it is not our intention to relitigate that issue."3 While it is not entirely clear to the Court, United Heartland apparently intends to offer a list of exhibits introduced at the arbitration hearing, to show the jury why it was contesting Pfab's claim at that time. That is, United Heartland had evidence prior to the arbitration hearing suggesting that Pfab's on-going TMJ problems were not caused by her being kicked in the face on November 5, 2006. See, e.g., Letter from Richard T. Fleck, DDS (Defendant's Trial Exhibit E).

Pfab concedes, however, that prior to the arbitration decision, her claim for workers' compensation benefits was "fairly debatable," thus prohibiting a finding of bad faith against United Heartland at that time. Instead, Pfab argues that following the arbitration decision - and subsequent affirmation on appeal by Workers' Compensation Commissioner Christopher J. Godfrey - her claim for benefits was no longer "fairly debatable." Pfab's claim for bad faith rests on United Heartland's continued refusal to pay medical benefits after that time.

In order to place Pfab's bad faith claim in context, it will clearly be necessary for the parties to introduce evidence regarding her injury, her claim for benefits, the proceedings before the workers' compensation commissioner, and United Heartland's

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subsequent refusal to pay TMJ-related medical bills. In this regard, the jury will be told that a deputy industrial commissioner found that Pfab's work injury permanently exacerbated her preexisting TMJ condition. Counsel for United Heartland assures the Court that it is not intending to "relitigate" that issue.

B. Expert Testimony of John Bickel

Next, Pfab objects to United Heartland offering expert testimony by attorney John Bickel.4 The substance of Mr. Bickel's testimony may be found in his letter to Umted Heartland's attorney, dated November 11, 2011, identified as Defendant's Trial Exhibit L. If permitted to do so, Mr. Bickel will testify that paying for medical bills is not an admission of compensability, and medical records prior to the hearing "reflected an issue" in this regard. According to Mr. Bickel, it was "not unreasonable nor unusual" for United Heartland to submit the records to a medical professional in order to obtain an opinion regarding causation. Mr. Bickel will further opine that "[n]o judicial decision exists requiring payment of the disputed unpaid medicals."5 Furthermore, Mr. Bickel believes that "[t]here is no statutory provision or case law requiring non-submitted elements of a claim to be paid once there is an adjudication on claimed elements."6

In its resistance, United Heartland asserts that "it is not uncommon for expert witness testimony as to applicable standards to be presented in workers' compensation bad faith cases."7 In support of its argument, United Heartland cites Zimmer v. Travelers Ins. Co., 521 F. Supp. 2d 910 (S.D. Iowa 2007), and Reedy v. White Consol. Indus., Inc., 890 F. Supp. 1417 (N.D. Iowa 1995). In those cases, the court permitted expert testimony

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regarding "claims handling standards" and "adjusting procedures." Mr. Bickel will be permitted to offer similar testimony here. United Heartland apparently concedes, however, that an expert witness may not advise the jury regarding the substantive law.

To establish her first-party bad faith claim, Pfab must prove that (1) there was no reasonable basis for United Heartland to refuse to pay the medical bills following the arbitration hearing, and (2) United Heartland knew or had reason to know that there was no reasonable basis for refusing to pay the medical bills. Rodda v. Vermeer Mfg., 734 N.W.2d 480, 483 (Iowa 2007). The first element employs an objective standard, which can generally be decided as a matter of law by the court. Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473 (Iowa 2005). The second element employs a subjective standard, which requires the jury to determine whether the "insurer knew or should have known that the basis for denying its insured's claim was unreasonable." Id. at 474. Thus, testimony is admissible regarding what United Heartland knew of the law at the time it refused to pay the medical bills following the arbitration hearing, or what it "should have known" at that time.

A reasonable jury could conclude that after the deputy industrial commissioner's decision was affirmed on appeal, the...

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