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Phyllis A. Jennison v. the Hartford Life and

August 3, 2011



Presently before the Court are The Hartford Life and Accident Insurance Company ("Defendant")'s Motion for summary judgment, Phyllis A. Jennison ("Plaintiff")'s Cross-motion for summary judgment, and Defendant's Motion to strike Plaintiff's cross-motion. Motion for summary judgment (Dkt. No. 21) ("Mot. for S.J."); Cross-motion for summary judgment (Dkt. No. 23) ("Cross-mot. for S.J."); Motion to strike (Dkt. No. 29) ("Mot. to Strike"). In the Complaint, Plaintiff alleges that Defendant improperly denied her claim for long term disability ("LTD") benefits, in violation of the Employee Retirement Income Security Act ("ERISA") and in breach of their contract, an allegation which Defendant denies. Complaint (Dkt. No. 1) ("Compl.") at 5-7; Answer (Dkt. No. 13) at 4-5. For the reasons explained below, the Court denies Defendant's Motion to strike, grants Defendant's Motion for summary judgment, and denies Plaintiff's Cross-motion for summary judgment.


In November 2004, Plaintiff began working as an insurance specialist for American International Group, Inc. ("AIG"), where she participated in a group LTD insurance plan (the "Plan") administered by Defendant through her employer. Defendant's Statement of material facts (Dkt. No. 21-19) ("Def. 7.1 Statement") at 1-2; Plaintiff's Response to Defendant's Statement of material facts (Dkt. No. 22-2) ("Pl. Resp. to 7.1 Statement") at 1. The ERISA-regulated Plan provided for disability benefits in the event that Plaintiff should be unable to perform an essential job duty for at least six months as a result of sickness or other causes. Def.7.1 Statement at 2-3; Pl. Resp. to 7.1 Statement at 1.

Following a diagnosis of sciatic neuralgia and lumbar disc space narrowing in October 2008, Plaintiff was granted short term disability leave from AIG for her lower back pain. Declaration of Kim M. Huber ("Huber Decl."), Jennison 201, 263.*fn1 While on leave, Plaintiff continued to seek treatment for her chronic back pain, as well as fibromyalgia and arthritis. Id., Jennison 234-44, 258-60. A Functional Capacity Evaluation ("FCE") conducted on January 14 concluded that Plaintiff was capable of returning to work, as long as she changed sitting position every thirty minutes, avoided repetitive bending and lifting, and did not lift more than twenty pounds; thus, her short term leave ended January 28, 2009. Id., Jennison 201, 212-16. Plaintiff subsequently filed for LTD benefits on February 10, 2009. Id., Jennison 347-50. To assess her claim, Defendant solicited and reviewed Plaintiff's medical records and the opinions of her treating physicians. Id., Jennison 117-39.

Medical records from that period show that Plaintiff was being treated by Dr. David Zander ("Dr. Zander") and Family Nurse Practitioner Jonathan Briggs ("FNP Briggs") for primary care, Rheumatologist Dr. Paul Dura ("Dr. Dura"), Chiropractor Dr. Douglas Taber ("Dr. Taber"), Orthopedist Dr. Erik Hiester ("Dr. Hiester"), and Neurologist Dr. Aamir Rasheed ("Dr. Rasheed"). Id., Jennison 234-35, 258, 262, 294, 308. According to their records, Dr. Zander and FNP Briggs treated Plaintiff for fibromyalgia-related paresthesia and degenerative disc disease, but ultimately concurred with the FCE that Plaintiff could return to her sedentary job, as long as she changed sitting position every thirty minutes. Id., Jennison 234-44, 321, 361, 372. Dr. Dura treated Plaintiff for her knee and back pain: x-rays of those areas in February 2009 revealed mild disc degeneration in her thoracic region and mild osteoarthritis in her right knee. Id., Jennison 254-55, 258-60. In the Attending Physician's Statement of Functionality ("APSF") he completed March 6, 2009, Dr. Dura estimated that Plaintiff could sit for two hours at a time, eight hours a day. Id., Jennison 359-60.

Plaintiff's chiropractor, Dr. Taber, diagnosed her sciatic neuralgia and treated her back pain in Fall 2008. Id., Jennison 262-73. When she did not show improvement, he sent Plaintiff for a consultation with Dr. Hiester. Id., Jennison 273. Dr. Hiester reviewed Plaintiff's lumbar spine MRI and ordered MRIs for her brain and cervical spine, which confirmed Plaintiff's degenerative disc disease. Id., Jennison 403-05. Unable to offer any promising treatment beyond pain medication, Dr. Hiester recommended that Plaintiff consult with Dr. Rasheed. Id., Jennison 294. Focusing on Plaintiff's fibromyalgia symptoms, neuropathy and paresthesia, Dr. Rasheed ordered extensive testing, including Electromyography and Nerve Conduction Studies to measure electrical activity in the muscles and nerves of her legs and arms; test results were all unremarkable. Id., Jennison 306-16. Finding further neurologic work-ups to be unnecessary, Dr. Rasheed recommended Plaintiff follow-up with Dr. Dura. Id. When contacted by Defendant about Plaintiff's claim for LTD benefits, both Drs. Taber and Hiester deferred to FNP Briggs and Dr. Rasheed did not respond. Id., Jennison 110, 204, 223.

Based upon the FCE recommendation, as well as the APSFs by FNP Briggs and Dr. Zander, and Dr. Dura, Defendant rejected Plaintiff's claim for LTD benefits on June 19, 2009. Id., Jennison 107-12. Plaintiff requested an appeal and in support of her claim, submitted a letter from Dr. Ralph Ortiz ("Dr. Ortiz"), stating that she was "100% totally disabled." Id., Jennison 190-92. Plaintiff's appeal was denied in December 2009, based on a report from Dr. Robert Marks ("Dr. Marks"), a physician Board Certified in Neurology and Physical Medicine & Rehabilitation, who conducted an independent medical review of the file and interviewed Plaintiff's treating physicians. Id. Jennison 94-98, 151-60. Dr. Marks concluded that Plaintiff could return to sedentary work, provided she could modify her posture or stand as needed, with restricted lifting, bending, crouching, kneeling, crawling, and climbing. Id., Jennison 159-60. Two months later, Plaintiff filed the Complaint. Compl. Originally, she also sought relief against her employer, AIG, but stipulated to its dismissal in September 2010. Stipulation of Dismissal (Dkt. No. 18) ("Stip. of Dismissal").


A. Motion to Strike

1. Standard of Review

"The decision to grant or deny a motion to strike is vested in the trial judge's sound discretion." Canady v. Erbe Electromedizin GmbH, 307 F. Supp. 2d 2, 7 (D.D.C. 2004); see also Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) ("We will not disturb a district court's grant of a motion to strike unless manifestly erroneous."). However, the Second Circuit has established a strong preference for litigation disputes to be resolved on their merits, and not by default. See Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995); see also Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993); Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983); Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). When dealing with motions to strike pleadings, the Second Circuit has repeatedly found that dismissal is a drastic remedy and has shown a preference for allowing litigation to continue. See Indep. Prods. Corp. v. Loew's Inc., 283 F.2d 730, 733 (2d Cir. 1960); Gill v. Stolow, 240 F.2d 669, 670 (2d Cir. 1957); Producers Releasing Corp. De Cuba v. PRC Pictures, 176 F.2d 93, 96 (2d Cir. 1949). While striking a motion does not carry the weight of dismissing a complaint, the same desire to allow litigation to be resolved on its merits applies to striking motions; some courts have disallowed the practice altogether. See Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983) ("only pleadings are subject to motions to strike"); Azikiwe v. Nigeria Airway, No. CV-03-6387, 2006 WL 2224450, at *1 (E.D.N.Y. July 31, 2006) ("Rule 12(f) applies only to pleadings and therefore does not provide a basis for striking defendants' motions."). Ultimately, though, the decision to strike a motion lies within the trial court's discretion.

FED. R. CIV. P. 56, which regulates summary judgment, contains no provision for striking motions, but does require that supporting affidavits "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." The Second Circuit has established that courts may strike portions of an affidavit that are not based upon the affiant's personal knowledge, are inadmissible, or make conclusory statements. See Hollander, 172 F.3d at 198 (2d Cir. 1999). However, motions to strike evidence supporting summary judgment motions "are unnecessary and produce only redundant statements by the court that it has not relied on such inadmissible evidence in deciding the summary judgment motion." Ricci v. Destefano, No. 3:04 CV 1109, 2006 WL 2666081, at *3 (D. Conn. Sept. 15, 2006). See also Martin v. Town of Westport, 558 F. Supp. 2d 228, 231 (D. Conn. 2008) ("Defendants should have faith, however, that the court knows the difference between admissible and non-admissible evidence, and would not base a summary judgment decision simply upon the self-serving ipse dixit of a particular party."). As with striking motions, the trial judge has discretion when deciding motions to strike affidavits in support of summary judgment motions.

2. Application

Defendant claims that because the Cross-motion was filed after the deadline established in the Uniform Pretrial Scheduling Order, it was prejudiced by Plaintiff's opportunity to review Defendant's Motion and the length of time in which to respond was also truncated. Mot. to Strike at 2. Plaintiff's taking two weeks to prepare a Cross-motion in response to Defendant's Motion for summary judgment is not an excessive amount of time, nor is it unreasonable that Plaintiff would need to review Defendant's Motion in order to prepare a proper response. Additionally, if Defendant had ...

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