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Princeton Insurance Co. v. Vergano10/11/2005
Date Submitted: September 13, 2005
Defendant Susan Vergano was operated on by plaintiff Dr. Norman R. Robinson, who recommended a lymph node resection surgery. During that surgery, Dr. Robinson severed Vergano's right spinal accessory nerve. Vergano later brought suit against Dr. Robinson and others in the Superior Court, alleging that she was unable to work and was enduring pain and suffering as a result of malpractice by Dr. Robinson (the "Malpractice Case").
Just before trial, Vergano and the defendants in the Malpractice Case, who included not only Dr. Robinson and his professional corporations, but his insurer, Princeton Insurance Company, and the company that operated the hospital where the surgery was performed, Christiana Care Health Services, Inc. (collectively, the "Malpractice Defendants"), engaged in mediation. By the time of the mediation, it was clear to all the Malpractice Defendants that it was indisputable that Dr. Robinson had committed malpractice and that they had no liability defense. Thus, the key issue was the extent of Vergano's damages, with the Malpractice Defendants facing a possible verdict of over $2 million. Indeed, the Malpractice Defendants suspected that Vergano was exaggerating the extent to which the surgery had impaired her physical capabilities and caused her pain - what I will call her "claims of pain and impairment." Nonetheless, the Malpractice Defendants agreed at the end of the mediation to settle with Vergano by agreeing to pay her $945,000.
The day after the settlement was reached, Vergano attended a beef and beer fundraiser in Middletown to benefit a local group of cheerleaders. While at the event, James Drnec, who had served as one of the attorneys for Christiana Care Health Services in the Malpractice Case, saw Vergano dancing while holding a beer. Believing Vergano to be engaged in physical activity inconsistent with her claims of pain and impairment in the Malpractice Case, Drnec went home and got a video camera. He returned to the fundraiser and enlisted a female friend who also knew Vergano to ask Vergano to dance. Drnec, through this deception, got Vergano dancing again and used that opportunity to film her secretly.
Drnec then took the tape (the "Drnec Video") to the Malpractice Defendants. Princeton Insurance conducted surveillance on Vergano for several days, again without her knowledge, and observed her doing normal activities like driving and shopping (the "Surveillance Videos").
The Malpractice Defendants then reneged on their settlement, claiming that they possessed evidence that Vergano had defrauded them. They brought this action seeking a declaration to that effect and rescission of the settlement agreement. Vergano opposes that claim and demands specific performance of the settlement agreement and other damages for the Malpractice Defendants' failure to consummate the settlement agreement.
Before me now are two motions in limine by the Malpractice Defendants. The first seeks the admission of the testimony of Vergano's attorney in the Malpractice Case, Nancy H. Fullam. The Malpractice Defendants want Fullam to give opinion testimony to the effect that the conduct of Vergano observed on the Drnec Video is inconsistent with Vergano's claims of pain and impairment in the Malpractice Case. They say that the crime-fraud exception to the attorney-client privilege justifies the admission of this testimony. Alternatively, the Malpractice Defendants argue that Fullam's testimony is admissible under the "at issue" exception to the attorney-client privilege because in deposition testimony in this case Vergano disclaimed having read the interrogatory answers, the complaint, or the
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