Furthermore, Roberts said, the fact that AMS denied Megan Jones's appeal in April 1995, after the company knew her policy didn't have a pre-existing-condition clause--"in effect denying coverage based on a provision they knew wasn't in there"--was nothing less than a "deceptive practice" and "an egregious act" of bad faith.
"What is the plaintiff paying you for your testimony today, Mr. Roberts?" Gigax asked during cross-examination.
"My standard expert testimony rate," Roberts replied. "Approximately $195 per hour."
"No further questions, your Honor."
On December 18, while counsel was arguing over jury instructions in the judge's chambers, one juror asked to be released from duty. John J. Mattey, an attorney who once did defense work for insurance companies, said he was overburdened with a new baby and a more-than-full-time job that needed him. Schendzielos, who says he'd acquiesced to Mattey's presence on the jury in hopes that an attorney familiar with insurance law could help explain complicated issues to fellow jurors, told Fasing he had no problem with letting Mattey go. Both Gigax and Porter objected. Mattey stayed.
That night Mattey wrote a letter to the judge, which was entered into evidence the next day. In it, Mattey devoted two single-spaced pages to detailing the rigorous schedule of his new swimwear/swim team organization and the nights spent up with his then-five-week-old baby. He did not attempt to hide his irritation with the length of the trial, at that point three days over schedule. "It is likely that my retail store will be closed for at least some portion of one of the busiest shopping days of the year due to counsel's antics," he wrote. "The simple fact that much of yesterday was spent arguing those same instructions leads me to conclude that counsel have no respect for the time constraints and burdens which jury duty places on those individuals willing to meet their civic obligations...In light of the fact that Mr. Roberts received $195 per hour for his testimony, the $50 per day I am to receive neither appears fair or adequate at this or any time of the year."
On that same day, December 19, the jury finally received the case for deliberation. After four and a half hours, they returned four verdicts, all in favor of the defendants: AMS, United Wisconsin Life Insurance Company and Gary Cushner. (Cushner did not return Westword's calls, and his lawyer refused to allow him to comment on the case.)
After the verdict was in, Roberts said he hadn't seen such an outrageous case in years. "Very, very unprofessional. What they're doing here is called `post-claim underwriting.' They get an expensive claim in and decide, uh-oh, what can we do about it now?"
According to Barbara Yondorff, an analyst with the Colorado Division of Insurance, "post-claim underwriting" is becoming increasingly common. While she cautions that she cannot comment directly on Megan Jones's case because she's not familiar with it, she will say that it sounds like "a mess."
"We tell people: Fill out the policy carefully--but if you didn't think you had cancer because you had a letter that said there was no suspicion of cancer, I can't imagine requiring you to put it down.
"Then we tell people: Don't let your old insurance policy lapse before your new one takes effect. Well, she didn't. Then we tell them to read carefully for a pre-existing-condition clause. Well, there wasn't one. And finally, we tell people to call and check whether or not they're covered before they go into treatment. And she did. She asked her agent, and by law, he's a legal representative of the insurance company.
"I don't know every detail about the case here," warns Yondorff, "but it seems to me the Division of Insurance would have sided with the consumer in this one."
Although the jurors didn't, even Mattey admits to feeling "bad" for Megan Jones. "I couldn't even look at her," he says, then pauses. "But we were too educated to fall victim to the passion."
"I felt terrible," adds juror Patricia Kuhns. "But believe me, that trial cost me."
Kuhns believes Megan Jones didn't think she had cancer. "Oh, I would've celebrated too if I got that letter," she says of the notice from the Mammography Center. "I don't know, I guess it was that life-insurance thing that was the real kicker for me. That was the biggest thing. My husband and I have been arguing about the case ever since it's been over.
"He thinks if she hasn't been diagnosed, then why put it down? I don't know. It's like you're damned if you do and you're damned if you don't. What good are insurance companies if they only want to insure the healthy?
