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Burgio v. Prudential Life Insurance Company of America

September 29, 2009

FRANK BURGIO, PLAINTIFF,
v.
THE PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

ORDER

I. PRELIMINARY STATEMENT

Plaintiff Frank Burgio ("Plaintiff" or "Burgio") brought this action against Defendant The Prudential Insurance Company of America ("Defendant" or "Prudential") for the unlawful denial of long term disability ("LTD") benefits to which he claims entitlement as a beneficiary of Prudential's LTD Plan, an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §§ 1001 et seq. Currently before the Court is Plaintiff's motion seeking (1) permission to take a limited deposition of Dr. Patrick Foye, the medical reviewer who performed the final review of the claim materials on Defendant's behalf; and (2) to compel the production of documentation that "addresses the requirements upon a District Agent for Prudential (the occupation of Plaintiff)" [DE 31]. The Court has reviewed Plaintiff's motion papers, Defendant's opposition papers [DE 32], and Plaintiff's April 3 and September 11, 2009 notices of supplemental authority [DE 34, 36]. In addition, the parties appeared for oral argument on February 3, 2009. After a careful review of the parties' respective positions and the applicable case law, I am hereby GRANTING, in part, and DENYING, in part, Plaintiff's Motion.

II. BACKGROUND

Plaintiff became disabled in 1993 and, pursuant to a finding that Plaintiff was unable to perform his occupation as a District Agent (the relevant definition of disability under the LTD Plan), Prudential began to pay LTD benefits to Plaintiff under the LTD Plan. In or around 2000, Plaintiff maintained that he was still unable to perform his duties as a district agent and that his condition had worsened, in response to which Prudential decided to conduct an evaluation of Plaintiff.

First, Prudential had a surveillance video made of Plaintiff while he engaged in various types of activities. Defendant's counsel states that the video is approximately two hours in length and shows Plaintiff driving and coaching a youth baseball game where, according to Defendant, Plaintiff stood for nearly two hours, pitched balls to some of the children, picked up children and carried equipment bags. Prudential also had Plaintiff evaluated by a physician, Dr. Rosenberg. It is undisputed that Dr. Rosenberg was provided with the surveillance video prior to the examination and that he concluded that Plaintiff was able to perform his duties as a District Agent. Based upon the surveillance video and Dr. Rosenberg's independent medical examination ("IME") of Plaintiff, Prudential terminated Plaintiff's benefits at the end of 2003, effective as of January 1, 2004. Thereafter, Plaintiff filed four separate appeals of Prudential's decision to terminate his LTD benefits. As part of those appeals, he was entitled to provide Prudential with any documentation regarding his condition. During the appeals process, Prudential had Plaintiff's claim reviewed by two doctors -- Dr. Kaplan and Dr. Foye -- each of whom concluded that Plaintiff was able to perform his duties as a District Agent.

III. THE PARTIES'CONTENTIONS

A. Plaintiff's Request To Depose Dr. Foye

First, Plaintiff argues that he is entitled to take a limited, two-hour deposition of Dr. Foye, the outside medical reviewer who performed the final review of the claim materials on Defendant's behalf. Plaintiff's counsel asserts that to date, he has "been unable to address any of Dr. Foye's involvement with the claim, because [the] previous depositions were limited to eliciting testimony from Prudential witness(es) solely as to their involvement with the claim." DE 31. Plaintiff explains that, pursuant to this Court's September 24, 2008 Order [DE 27] granting Plaintiff's Motion to Compel (the "September 24, 2008 Order"), Plaintiff deposed Betty Ricci, a Prudential claims representative who was involved in the claim at the appeal level, but who was not involved with the final decision to terminate Plaintiff's benefits. Rather, according to Plaintiff, "that person was Mariellen Scoopo, who is no longer employed by Prudential, and was thus unable to be produced for deposition."*fn1 DE 31. Also pursuant to this Court's September 24 Order, Plaintiff deposed Andrew Schopfer, who was Prudential's designated Rule 30(b)(6) witness,*fn2 and Dr. Craig Rosenberg who, as explained above, examined Plaintiff prior to Prudential's termination of his LTD benefits. Plaintiff contends that if he is "unable to depose Dr. Foye, it is conceivable that the District Court could rest its determination of the action solely upon Prudential's reliance upon Dr. Foye's review, which would severely prejudice Plaintiff." Id.

At oral argument, Plaintiff explained that, as a result of the three depositions which Plaintiff was permitted to take pursuant to this Court's September 24, 2008 Order, Plaintiff has learned new information which necessitates taking the deposition of Dr. Foye, separate and apart from Ms. Scoopo. During her deposition, Ms. Ricci was shown the invoice submitted by Dr. Kaplan (who, along with Dr. Foye, reviewed Plaintiff's claim file but did not examine Plaintiff, and who are sometimes referred to as the "paper reviewing doctors"). The invoice shows that Dr. Kaplan billed Prudential for 11/2 hours of work for reviewing the surveillance video and medical records. However, according to Plaintiff, the surveillance video is two hours long and the medical records purportedly reviewed by Dr. Kaplan are quite extensive. According to Plaintiff, Ms. Ricci had no explanation for this discrepancy between the amount of materials allegedly reviewed and the time it took to perform such review.

It is undisputed that Dr. Foye's report refers to the surveillance video provided by Prudential and to the conclusions of Dr. Rosenberg and Dr. Kaplan, and that the report was relied upon by Prudential in deciding Plaintiff's final appeal of the termination of his LTD benefits.

Thus, Plaintiff asserted at oral argument that the discrepancies in Dr. Kaplan's report and the extent to which Dr. Foye relied upon Dr. Kaplan's report create doubt as to the credibility of Dr. Foye, Dr. Kaplan and Prudential's claim review process. Moreover, Plaintiff questions Prudential's determination of Plaintiff's appeals based upon the reports of the paper reviewing doctors rather than on the opinions of the doctors who actually examined Plaintiff and who (with the exception of Dr. Rosenberg) apparently concluded Plaintiff could not perform the duties of a District Agent.

Also at oral argument, Plaintiff explained that, as a result of documents Plaintiff obtained pursuant to this Court's September 24 Order, Plaintiff learned that between 2003 and 2005, Dr. Foye earned between $137,000 and $158,000 per year, or approximately $450,000 over the three-year period working for Prudential -- including the period when Dr. Foye reviewed Plaintiff's claim file. For all of these reasons, Plaintiff asserts he is entitled to depose Dr. Foye and further proposes that the scope of this deposition be limited to the topics on which Plaintiff was permitted to depose Dr. Rosenberg (i.e., Plaintiff's medical records, Dr. Foye's examination of Plaintiff's file, Dr. Foye's correspondence with Prudential as to Plaintiff's claim, his conclusions regarding Plaintiff's condition, and the bases for those conclusions).

In further support of his position, Plaintiff points to Wein v. Prudential Insurance Company of America, No. 03-CV-6525, 2006 WL 2844176, at *10 (E.D.N.Y. Oct. 2, 2006), in which the district judge, according to Plaintiff, "chastised" Prudential and Dr. Foye for his cursory review of the relevant material. Likewise, in follow-up letters [DE 34, 36], Plaintiff provided "notice of authority" with regard to two recent decisions which, according to Plaintiff, support his position that he should be granted leave to depose Dr. Foye. These decisions, which are discussed further below, are Sansby v. Prudential Insurance Company of America, No. 97-11524, 2009 WL 799468 (D. Mass. Mar. 25, 2009) and Mergel v. Prudential Insurance Company of America, 09 CV 00039, 2009 WL 2849084 (S.D.N.Y. Sept. 1, 2009).

In opposition, Defendant argues that in the September 24, 2008 Order [DE 27], this Court previously considered Plaintiff's request to depose Dr. Foye (in the Motion to Compel [DE 18], when Plaintiff sought permission to depose Doctors Rosenberg, Kaplan and Foye) and, with the exception of Dr. Rosenberg, denied Plaintiff's application on the grounds that "it is not reasonably likely that deposing these doctors will uncover evidence demonstrating a conflict of interest." Because, according to Defendant, Plaintiff's instant motion does not set forth any new allegation regarding a potential conflict of interest, the Court should again reject Plaintiff's request to depose Dr Foye. See DE 32. Moreover, Defendant argues, Plaintiff's request to depose Dr. Foye does not relate to an alleged conflict of interest, but rather goes to the merits of his medical determination, which is outside the permissible scope of discovery in this case. Regarding Plaintiff's assertion that he "could have inquired as to Dr. Foye's involvement" if he had deposed Mariellen Scoopo (who handled one of Plaintiff's appeals but no longer works at Prudential), Defendant argues that, pursuant to this Court's September 24 Order (permitting Plaintiff to "depose one individual . . . who was involved in Prudential's decision to deny Plaintiff's LTD benefits . . ."), Plaintiff was free to subpoena Ms. Scoopo if he so chose. DE 32.

At oral argument, Defendant claimed that Ms. Ricci, during her deposition, provided a plausible explanation as to why Dr. Kaplan may have billed Prudential for 11/2 hours of work for his review of the surveillance video and medical records, even though the surveillance video is two hours in length. According to Defendant, Ms. Ricci testified that it was possible that Dr. Kaplan fast-forwarded through parts of the video because it may not have been necessary for him to watch the entire video in "real time" in order to understand the types of activities in which Plaintiff was engaged.

B. Plaintiff's Request For Documentation

Plaintiff maintains that he is entitled to documentation that "addresses the requirements upon a District Agent for Prudential (the occupation of Plaintiff)." DE 31. To this end, Plaintiff asserts that "[i]ssues have arisen during the course of discovery [which] center around the frequency in which Plaintiff was required to have contact with potential clients, and documentation which Prudential disseminated to its District Agents would be relevant to those issues." Id. Moreover, Plaintiff maintains that "this material should not be difficult for Prudential to produce and could offer relevant evidence to address the claims and contentions of the parties." Id.

In opposition, Defendant maintains that "[t]he Administrative Record already contains the job description of the district agent, as well as other documentation regarding the physical requirements of that position." DE 32. Moreover, Defendant argues that if Plaintiff is seeking additional documentation beyond what is contained in the Administrative Record, he is not entitled to such information because he has not shown that "information addressing the job requirements of a district agent has a connection with any alleged conflict of interest[,]" and such information is thus beyond the permissible scope of discovery. Id. Moreover, at oral argument, Defendant claimed that Plaintiff's request ...


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