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Tholke v. Unisys Corp.

March 20, 2008


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


On June 18, 2001, Mrs. Andrea Tholke, Plaintiff, brought an action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., challenging the denial of long-term disability benefits under her employer's benefit plan, and I later granted summary judgment to the Unisys Long Term Disability Plan (the "LTD Plan"), the Unisys Employee Benefits Administrative Committee (the "Committee") and Unisys Corporation ("Unisys") ("Defendants"). Following remand by the Second Circuit, I instructed Tholke and the Defendants to conduct additional discovery to resolve the sole disputed material fact- whether the Committee's July 8, 2002 minutes accurately recorded the medical opinion of Dr. Richard Silver ("Dr. Silver"). After post-remand discovery, Defendants moved to reinstate summary judgment in their favor, while Tholke moved to strike testimony from Dr. Silver and find summary judgment in her favor or, in the alternative, allow for additional discovery. For the following reasons, defendants' motion to reinstate summary judgment is GRANTED, and Plaintiff's motions are DENIED.


The Court assumes familiarity with the background of this case as set forth in Tholke v. Unisys Corp., 2002 WL 575650 (S.D.N.Y. Apr. 16, 2002) ("Tholke I"), and Tholke v. Unisys Corp., 2003 WL 21203349 (S.D.N.Y. May 21, 2003) ("Tholke II"), thus I will present here a brief recitation of the facts and the results of renewed discovery. Andrea Tholke, who suffers from cerebral palsy, worked for many years for the Unisys Corporation as a copy clerk, but claimed that she was unable to continue work after being injured in a car accident on December 5, 1992. Tholke I, 2002 WL 575650, at *1. Tholke applied for benefits under the Unisys Long Term Disability Plan (the "LTD Plan"). Id.

The extent of Tholke's disability was inconclusive from Tholke's first two doctors. Unisys asked for a third and then a fourth doctor to examine her. Id. at *1-*2. Three of the four doctors found that Tholke did not need further treatment, was not disabled, and was able to work. Id. at *2.*fn2 However, uncertainty still existed as to whether Tholke's ability to work meant "light" work or "sedentary" work,*fn3 and the parties presented conflicting descriptions of what Tholke's job entailed. Id. She exhausted her appeals with the administrator of the LTD Plan, Hartford Life and Accident Insurance Company, and then appealed to the Unisys Employee Benefits Administrative Committee (the "Committee"), which denied Tholke benefits on August 3, 1995. Id. at *2-3. On June 18, 2001, nearly six years later, Tholke commenced this action.

In the first iteration of this case, I found that that the August 3, 1995 decision was arbitrary and capricious, and I ordered the Committee to give not only full and fair consideration, but to resolve (1) the discrepancy between the diagnoses of the doctors, and (2) the discrepancy between the job descriptions by Tholke and her supervisors. Tholke I, 2002 WL 575650, at *4-5. Subsequent to my order, the Committee hired a medical review firm, who retained orthopedic surgeon Dr. Richard Silver, to review the materials and make a recommendation. Tholke II, 2002 WL 575650, at *1. Dr. Silver evaluated the medical opinions of the various doctors, the conflicting job descriptions, and the issues the Committee wanted to resolve. Id., at *2. Silver faxed his report to the Committee on July 3, 2002. Id.

The Committee convened twice to review Dr. Silver's report, first on July 8, 2002 and again, on July 12, 2002. During the first meeting, the Committee invited Dr. Silver to present his report by phone, and according to the minutes of the meeting, Dr. Silver opined that "Ms. Tholke was able to perform the job duties prescribed under either job description and that, therefore, she would not have been disabled if her job duties had been as she had explained, or as her supervisor had explained." (Pope Decl. Ex. 7 at 3.) The Committee then determined that any controversy over the job duties was moot and there was no objective medical information to support the claim that Ms. Tholke met the requirements of the LTD Plan for benefits." (Pope Decl. Ex. 7 at 3.)

Three days after the July 8 meeting, Dr. Silver faxed the same report to Unisys but on this occasion with an additional document attached, the "Estimation of Physical Capacities" form dated June 22, 2002. (Bach Affirm. Ex.1 at 29-30.) The form specified what types of actions (standing, lifting, bending) Tholke could do and for how long. The data on the form seemed inconsistent with Dr. Silver's opinion and explanation at the July 8 meeting. The form presented Tholke's physical abilities as being substantially less than Dr. Silver's presentation would suggest.

The Committee decided to reconvene the next day, July 12, 2002, solely to resolve the purported inconsistency. (Pope Decl. Ex. 8 at 1.) According to the Committee's minutes, Dr. Silver explained that the form described physical limitations on Tholke only for the period of time immediately following her accident and before recovery, and that "he would place no restrictions on her ability to perform her job duties after the date of maximum medical improvement." (Pope Decl. Ex. 8 at 1.) The form listed the date of maximum improvement to be January 1, 2004-about one year and one month after the accident. (Bach Aff. Ex. 1 at 30).

After the Committee meetings of July 8 and July 12, 2002, Defendants denied coverage to Tholke and moved for summary judgment, which I granted. Tholke II, 2003 WL 21203349. Plaintiff successfully appealed the judgment for lack of sufficient noticethat I was considering summary judgment. Tholke v. Unisys Corp., 96 Fed. Appx. 76 (2d Cir. 2004) ("Tholke III"). Accordingly, I established a briefing schedule that provided sufficient notice, and I once again found in favor of the defendants on October 18, 2004. Tholke v. Unisys Corp., 2004 WL 2339480 (S.D.N.Y. Oct. 18, 2004) ("Tholke IV"). My decision in part rested upon Dr. Silver's conclusions as stated in the Committee's minutes.*fn4 Plaintiff appealed arguing that I was "misled" by the July 8, 2002 Committee minutes, which allegedly misreported Dr. Silver's conclusions. Tholke v. Unisys Corp., 235 Fed. Appx. 834, 838 (2d Cir. 2007) ("Tholke VI"). Plaintiff pointed to possible discrepancies between Dr. Silver's original July 3, 2002 report and his conclusion at the July 8, 2002 meeting as proof. Id. at 838-839.

The Second Circuit did not find that any deception had occurred; nevertheless, it held that this Court had erred by relying on the Committee's minutes because there was a genuine dispute of material fact as to whether the July 8, 2002 minutes accurately described Dr. Silver's views. Id. More specifically, the court found that Dr. Silver's conclusions in his June 3, 2002 written report were "cautious," while his verbal conclusions to the Committee on July 8, 2004, as recorded in the Committee's minutes, were "less cautious." Id.Accordingly, the Second Circuit found a genuine dispute of material fact existed, vacated the grant of summary judgment, and remanded the case back to this Court to resolve "whether the Committee correctly understood, and correctly recorded, Dr. Silver's Comments." Id. at 840. The Second Circuit suggested that even an affidavit by Dr. Silver "might have dispelled any ambiguities in these actions and established the accuracy of the meeting minutes as a matter of law." Tholke VI, 235 Fed. Appx. at 840.*fn5

After the June 7, 2007 remand, I solicited views from the parties on the appropriate scope of post-remand discovery and concluded that, while an affidavit as suggested by the Circuit might be sufficient, it was preferable to depose Dr. Silver and Mary Massman, the recording secretary.*fn6 (Ct.'s Letter, Sept. 19, 2007.) In addition, several new documents relating to the accuracy of the minutes were produced during the course of depositions. These additional documents included Massman's handwritten notes of the July 8, 2002 minutes (Pope Decl. Ex. 6) and a committee member's email to Massman which noted, among other things, her approval of the draft minutes that Massman had composed (Pope Decl. Ex. 3).

Ms. Massman testified that the minutes were accurate and that she had independent recollections of that meeting. (Massman Dep. 10, 38-39.) She also stated that she reviewed the Committee's July 15, 2002 denial letter, which contains the same conclusions by Dr. Silver as the minutes. (Massman Dep. 31-32, 45.) Massman indicated that, although she took handwritten notes at the meeting, the minutes were not typed up until five months later in early January 2003. (Massman Dep. 12-13.) She also said that she had a number of discussions with the law department about Tholke during the intervening months, and that she took the atypical action of sending her typed draft of the minutes to Unisys Counsel (who authored the July 15, 2002 letter) and making corrections before sending the minutes for approval by the Committee. (Massman Dep. 26-30.)

At Dr. Silver's deposition, he testified that he could not recall anything about his discussion with the Committee five and a half years ago. (Silver Dep. 8.) However, prior to the deposition, Dr. Silver reviewed Tholke's medical file and came to the same ...

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