Rickaby v. Hartford Life and Accident Insurance Company

Filing 69

ORDER by Magistrate Judge Nina Y. Wang on 04/21/16 DENYING 47 Motion to Compel. Each party shall bear its own costs and fees as to this motion. Court order GRANTING 61 Joint Motion Regarding Restriction of Exhibits 1 and 2 to Plaintiff's Motion to Supplement the Administrative Record. The Clerk of the Court is DIRECTED to MAINTAIN the following documents under Level 1 Restriction: [#43; #42-2]; and to DOCKET [#61-1] as the publicly-accessible version of Exhibit 2 (Redacted) [#42-2] to Plaintiffs Motion to Supplement the Administrative Record.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00813-WYD-NYW
CHRISTOPHER M. RICKABY,
Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, a Connecticut corporation,
Defendant.
ORDER
Magistrate Judge Nina Y. Wang
This civil action comes before the court on Plaintiff Christopher M. Rickaby’s
(“Plaintiff” or “Mr. Rickaby”) Motion to Compel Discovery (the “Motion to Compel”) [#47,
filed Jan. 14, 2016] and the Joint Motion Regarding Restriction of Exhibits 1 and 2 to Plaintiff’s
Motion to Supplement the Administrative Record (the “Motion to Restrict”) [#61, filed Mar. 22,
2016]. Pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, the
Order Referring case dated May 13, 2015 [#10] and the memoranda dated January 14, 2016
[#48] and March 22, 2016 [#62], these motions are before this Magistrate Judge.
BACKGROUND
This is an ERISA case under 29 U.S.C. § 1132 involving Mr. Rickaby’s request for
reinstatement of his long-term disability benefits by Defendant Hartford Life and Accident
Insurance Company (“Hartford” or “Defendant”). Mr. Rickaby filed this matter seeking to
recover long-term disability (“LTD”) benefits pursuant to a policy sponsored by his employer,

Stryker Corporation (the “Stryker Plan”). See [#1]. Hartford is responsible for paying all
benefits under the Stryker Plan and acts as claims administrator for LTD claims under the
Stryker Plan. Mr. Rickaby became physically unable to perform the functions of his job duties
and took a leave of absence to undergo ankle surgery in February 2008. He then had a number
of ankle surgeries and continues to need surgery on a chronic basis due to bilateral degenerative
joint disease in his ankles and bone abnormalities, including bilateral ankle tenosynovitis, and
chronic bilateral ankle pain with evidence of osteoarthritis of the ankle joints. Mr. Rickaby
began to receive LTD benefits in 2008 based on his medical condition, but these benefits were
terminated in March 2014. [#1 at 4]. Mr. Rickaby then exhausted his administrative remedies
and filed the Complaint in this matter. [#1 at 6].
In his Motion to Compel, Mr. Rickaby seeks to compel Hartford to respond to two
interrogatories pertaining to instances in which Hartford has obtained medical opinions through
third-party University Disability Consortium (“UDC”) and used those medical opinions as the
bases for denial or approval of claims for long-term disability benefits. Mr. Rickaby argues that
this discovery is relevant to show the extent of Hartford’s conflict of interest, warranting a
reduced level of deference to its decision to deny Mr. Rickaby’s LTD. In particular, Mr.
Rickaby argues that Hartford has a long history of relying on opinions by UDC as a basis for
denying disability benefits and that discovery into this relationship will help Mr. Rickaby show
bias. Hartford opposes the requested discovery. Hartford argues that the discovery Mr. Rickaby
requests, which Hartford likens to a “batting average statistic,” is not appropriate in an ERISA
action, as it does not fall within the narrow exception to the Tenth Circuit’s “no additional
discovery” rule. [#50 at 1-2].

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The Parties’ Motion to Restrict seeks to restrict Exhibit 1 and a portion of Exhibit 2 to
Plaintiff’s Motion to Supplement the Administrative Record on the basis that these documents
contain Hartford and UDC’s sensitive commercial and financial information. See [#61].
ANALYSIS
I.

Motion to Compel
“In an ERISA case where, as here, the plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to construe the terms of the plan,
we review the administrator’s decision for an abuse of discretion.” Murphy v. Deloitte & Touche
Grp. Ins. Plan, 619 F.3d 1151, 1157 (10th Cir. 2010) (internal quotations and citations omitted).
Under this abuse of discretion standard, the relevant case law generally “prohibits courts from
considering materials outside the administrative record where the extra-record materials sought
to be introduced relate to a claimant’s eligibility for benefits.” Id. at 1162 (citing Sandoval v.
Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992). Nevertheless, “[o]ur cases and
the Supreme Court’s decision in [Metropolitan Life Ins. Co. v.] Glenn, [544 U.S. 105 (2008)], . .
. contemplate that this general restriction does not conclusively prohibit a district court from
considering extra-record materials related to an administrator’s dual role conflict of interest.” Id.
Evidence of a conflict of interest may appear on the face of the plan, by evidence of improper
incentives, or through proof of a pattern or practice of unreasonably denying meritorious claims.
Glenn, 554 U.S. at 123 (Roberts, J., concurring).
Under Tenth Circuit precedent, the court is not to apply special rules for discovery
relating to a dual role conflict of interest, but to consider the requested discovery pursuant to Fed.
R. Civ. P. 26(b). Murphy, 619 F.3d at 1163. Under Fed. R. Civ. P. 26(b)(1), the scope of

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discovery is limited to “any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case.” The Tenth Circuit explained the application of Rule
26(b) in ERISA discovery in Murphy:
In exercising its discretion over discovery matters under Rule 26(b), district courts
will often need to account for several factors that will militate against broad
discovery. First, while a district court must always bear in mind that ERISA seeks
a fair and informed resolution of claims, ERISA also seeks to ensure a speedy,
inexpensive, and efficient resolution of those claims . . . . And while discovery
may, at times, be necessary to allow a claimant to ascertain and argue the
seriousness of an administrator’s conflict, Rule 26(b), although broad, has never
been a license to engage in an unwieldy, burdensome, and speculative fishing
expedition. The party moving to supplement the record or engage in extra-record
discovery bears the burden of showing its propriety.
Second, in determining whether a discovery request is overly costly or
burdensome in light of its benefits, the district court will need to consider the
necessity of discovery. For example, the benefit of allowing detailed discovery
related to the administrator’s financial interest in the claim will often be
outweighed by its burdens and costs because the inherent dual role conflict makes
that financial interest obvious or substantive evidence supporting denial of a claim
is so one-sided that the result would not change even giving full weight to the
alleged conflict. Similarly, a district court may be able to evaluate the effect of a
conflict of interest on an administrator by examining the thoroughness of the
administrator’s review, which can be evaluated based on the administrative
record.
Murphy, 619 F.3d at 1162-63 (internal quotations and citations omitted).
Under Fed. R. Civ. P. 37(a), a party may file a motion to compel discovery. Rule 37
provides:
On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that
the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court
action.
Fed. R. Civ. P. 37(a)(1). One ground for a motion to compel a discovery response is if “a party
fails to answer an interrogatory submitted under Rule 33.” Fed. R. Civ. P. 37(a)(3)(iii). Under
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the Rule, “an evasive or incomplete disclosure, answer or response must be treated as a failure to
disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4).
Mr. Rickaby moves to compel Hartford to provide responses to his Interrogatory Nos. 2
and 3, which pertain to the issue of bias of third-party vendors who Hartford utilizes. See [#47 at
2]. The relevant Interrogatories are reproduced below. The court includes Interrogatory No. 1
for the sake of clarity, although the Parties do not appear to maintain a dispute about Hartford’s
response to Interrogatory No. 1.
1.
Please state the total number of instances since January 1, 2012, in which
you have obtained a medical opinion through University Disability Consortium
concerning a claim for long-term disability benefits.
2.
Please state the number of instances of those instances identified in answer
to Interrogatory No. 1 in which a medical opinion obtained through University
Disability Consortium supported your denial of the claim for long-term disability
benefits.
3.
Please state the number of instances of those instances identified in answer
to Interrogatory No. 1 in which a medical opinion obtained through University
Disability Consortium supported the claimant’s claim for long-term disability
benefits.
Mr. Rickaby represents that Hartford responded to Interrogatory No. 1 by providing
information regarding Dr. Jerome Siegel, the doctor whom Hartford used to review the medical
records in Mr. Rickaby’s case. [#47 at 2]. However, Hartford objected to and did not answer
Interrogatory Nos. 2 and 3. [Id.]. Mr. Rickaby argues that the discovery sought in these
Interrogatories is relevant to show the bias of third party vendors utilized by Hartford. See [#47
at 2]. Hartford responds that this discovery does not fall within the narrow exception to the “no
additional discovery” rule in ERISA actions and that even if it did, the burden on Hartford to
produce this information outweighs the benefit to Mr. Rickaby in obtaining it.

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The court finds that Interrogatory Nos. 2 and 3 are not within the bounds of the narrow
exception to the rule that discovery outside the administrative record is not permitted in this type
of ERISA case. The determination of whether to award or deny disability benefits is necessarily
fact-intensive. The court is therefore not convinced that discovery into the number of claims that
Hartford has denied or awarded with supporting evidence from UDC or Dr. Siegel would be
probative of any bias or lack thereof. Indeed, without discovery into the underlying bases for
these coverage decisions, a simple tally of the number of grants and denials would lack meaning,
particularly where there is no information regarding whether the denials were wrongly decided. 1
See Whalen v. Std. Ins. Co., No. SACV 08-0878 DOC, 2010 WL 346715, at *2 (C.D. Cal. Jan.
14, 2010) (“A simple mathematical proportion of decisions in which each doctor denies benefits
is of no relevance unless it can also be shown that those denials were wrongly decided.”) (citing
Dilley v. Metropolitan Life Ins. Co., 256 F.R.D. 643, 645 (N.D. Cal. 2009)).
The court also finds that the burden that the requested discovery would place on Hartford
outweighs the value of this information to Mr. Rickaby. The court makes this finding with
specific consideration of the recent amendments to the Federal Rules of Civil Procedure,
including the amendment to Rule 26(b)(1) that specifically states that the scope of allowable

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The Parties should not interpret this Order to stand for the proposition that this discovery would
have necessarily been allowed should Mr. Rickaby have re-formulated his Interrogatories to also
request information regarding the underlying facts of each of the claims for which medical
opinions were obtained from UDC. Indeed, such broad and untargeted discovery would likely
not meet the proportionality requirement of Fed. R. Civ. P. 26(b) or comport with the narrow
scope of discovery allowed in dual role conflict cases under Tenth Circuit and District of
Colorado precedent.
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discovery is defined using the principles of proportionality. 2 The reports submitted by Dr. Seigel
to Hartford do not contain conclusions as to whether an individual meets the definition of
disability under an applicable policy, and whether a report is favorable or unfavorable is a
subjective determination. See [#50 at 14]; [#50-1 at ¶ 12]. And, as Hartford points out, many of
these reports likely comment on more than one illness or malady and may, therefore, be
characterized as both favorable and unfavorable, depending upon the specific medical condition
at issue. [#50 at 14]; [#50-1 at ¶ 16]. The discovery Mr. Rickaby moves to compel would thus
require an individual to review each of the reports compiled by Dr. Siegel, draw a subjective
conclusion about whether that report was favorable or not favorable, and then determine whether
that report supported a denial of the claim. Hartford has provided a conservative estimate that it
would cost Hartford between $16,000 and $24,000 in labor charges to compile even the most
basis statistical analysis requested by Mr. Rickaby. See [#50 at 14]; [#50-1 at ¶¶ 17-20]. And
even if the court were to compel Hartford to compile these statistics, the court finds that the
information in the statistics, without any type of information as to whether the statistics are
statistically sound or significant (from a technical perspective) and how the statistics should be
interpreted, would be of limited value to the conflict of interest analysis presented in this case.
The court also notes that Mr. Rickaby has been provided other information about
Hartford’s relationship with UDC and Dr. Seigel, including the numbers of peer reviews

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Pursuant to 28 U.S.C. § 2074(a) and the Order of the Supreme Court dated April 29, 2015, the
amendment governs all civil cases commenced after December 1, 2015 and “insofar as just and
practicable, all proceedings then pending.” Although this case was initiated prior to December 1,
2015, this court applies the principle of proportionality because it is the same principle that
would have applied through the former Rule 26(b)(2)(C)(iii). See Fed. R. Civ. P. 26(b)(1)
advisory committee note to 2015 amendment (“Most of what now appears in Rule
26(b)(2)(C)(iii) was first adopted in 1983.”).
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conducted by Dr. Siegel from 2012-2015 and the sum of all fees paid to UDC for these reviews.
See [#42-2 at 6]. To the extent that Mr. Rickaby wishes to make an argument in his briefing to
the court that Dr. Seigel’s opinions are therefore biased or flawed, he may do so with that
information. The court finds that the additional information sought would impose an undue
burden on Hartford if Hartford were to be compelled to compile it, given the questionable
relevance. On the record before it, the court finds that the requested discovery is extensive and
unnecessary and would “frustrate ERISA’s purpose to ‘ensure a speedy, inexpensive, and
efficient resolution of [the plaintiff’s] claims.’” Cleary v. Boeing Co. Employee & Welfare Ben.
Plan (Plan 303), No. 11-cv-00403-WJM-BNB, 2012 WL 5571454, at *3 (D. Colo. Nov. 15,
2012) (quoting Murphy, 619 F.3d at 1163). The court will therefore deny Mr. Rickaby’s Motion
to Compel.
Having determined that the court will deny Mr. Rickaby’s Motion to Compel, I will
nonetheless briefly address why I decline to adopt several of Mr. Rickaby’s remaining
arguments. In arguing to compel the Interrogatory responses, Mr. Rickaby relies heavily on
three cases from this District: (1) York v. The Prudential Ins. Co. of Amer., No. 13-cv-03289REB-MJW, 2014 WL 1882475 (D. Colo. May 12, 2014); (2) Rivera v. Unum Life Ins. Co. of
Amer., No. 11-cv-02585-WYD-KLM, 2012 WL 2709138 (D. Colo. July 9, 2012); and (3)
Almeida v. Hartford Life & Accident Ins. Co., No. 09-cv-01556-ZLW-KLM, 2010 WL 743520
(D. Colo. Mar. 2, 2010). Mr. Rickaby asserts that these cases show that courts in this District
have permitted discovery of essentially the same materials that are at issue here. See [#47 at 5].
These decisions can be read to stand for the proposition that in certain circumstances, discovery
into the claims denial practices may be allowed. However, a court’s exercise of discretion as to

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whether to compel discovery is case-specific, and this court’s decision rests firmly on its
determination, based on the record before it in this action, that Mr. Rickaby’s articulated need for
this information is outweighed by Hartford’s showing of burden.
Finally, the court will briefly address Mr. Rickaby’s argument that Hartford waived its
ability to object to Interrogatory Nos. 2 and 3, which was raised for the first time in Mr.
Rickaby’s reply brief. While the “court generally does not review issues raised for the first time
in a reply brief,” Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1166 (10th Cir. 2003), I will
briefly address this argument because Hartford had the benefit of responding to it in a surreply
brief.
Mr. Rickaby appears to argue that Hartford waived its right to object to Interrogatory
Nos. 2 and 3 because Hartford did not oppose Mr. Rickaby’s September 30, 2015 Motion for
Discovery [#28], in which Mr. Rickaby proposed four interrogatories including the two at issue
here, and in its response to that motion purportedly led the court to believe that it would respond
to these interrogatories. See [#52 at 1-2, 9]. The court respectfully disagrees. While Hartford did
state in its response to Mr. Rickaby’s Motion for Discovery that it would not oppose Mr.
Rickaby’s request for written discovery, it stated that it “expressly reserves all objections to
Plaintiff’s written discovery” and that “[b]oth parties reserve all rights and objections with regard
to Interrogatories 1-3.” [#32 at 2]. The court does not view Hartford’s agreement to Mr.
Rickaby’s request for discovery and its express reservation of the right to object to such
discovery as constituting any waiver of its arguments on the issue presently before the court.
On the basis of the foregoing, the court respectfully denies Mr. Rickaby’s Motion to
Compel.

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II.

Motion for Leave to Restrict
The Parties jointly filed a motion for leave to restrict two documents filed as exhibits to

Plaintiff’s Motion to Supplement Administrative Record. [#61]. The Parties request that Exhibit
1 to that Motion, which includes Hartford internal policy manuals and guidelines and an
Independent Medical Consultant Services Agreement between Hartford and University
Disability Consortium, be maintained under a Level 1 restriction. The Parties also request that
the court substitute a redacted copy of Exhibit 2, Defendant’s First Supplemental Responses to
Plaintiff’s Interrogatories and Requests for Production of Documents, for the copy that is
currently docketed.
There is a common-law right of access to judicial records, premised on the recognition
that public monitoring of the courts fosters important values such as respect for our judicial
system. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); In re Providence Journal
Co., 293 F.3d 1, 9 (1st Cir. 2002). Judges have a responsibility to avoid secrecy in court
proceedings because “secret court proceedings are anathema to a free society.” M.M. v. Zavaras,
939 F. Supp. 799, 801 (D. Colo. 1996). There is a presumption that documents essential to the
judicial process are to be available to the public, but access to them may be restricted when the
public's right of access is outweighed by interests which favor nondisclosure. See United States
v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997).
These principles are reflected in D.C.COLO.LCivR 7.2(a). Local Rule 7.2(c) is quite
clear that a party seeking to restrict access must make a multi-part showing. It must: (1) identify
the specific document for which restriction is sought; (2) identify the interest to be protected and
the reasons why that interest outweighs the presumption of public access; (3) identify a clear

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injury that would result if access is not restricted; and (4) explain why alternatives to restricted
access—such as redaction, summarization, stipulation, or partial restriction—are not adequate.
D.C.COLO.LCivR 7.2(c)(1)-(4).
The Parties seek Level 1 Restriction of Exhibits 1 and 2 [#43; #42-2] in support of
Plaintiff’s Motion to Supplement the Administrative Record. The Parties argue that Exhibit 1
consists of commercially sensitive information and proprietary contracts/internal company
manuals. [#61 at 2]. The Parties further argue that a portion of Exhibit 2 which includes
Hartford’s Response to Interrogatory No. 1 should be redacted because the interrogatory
response reveals sensitive commercial and financial information of Hartford and third-party
University Disability Consortium. See [#61 at 5].
In reviewing the documents at issue, the court has determined that the potential harm to
Hartford and UDC if the sensitive commercial and financial information in Exhibit 1 and
Hartford’s Response to Interrogatory 1 is not restricted outweighs the presumption that Exhibits
1 and 2 should be made available for public inspection. Accordingly, the court will grant the
Motion to Restrict.
CONCLUSION
On the basis of the foregoing, IT IS HEREBY ORDERED that:
(1)

The Motion to Compel Discovery [#47] is DENIED. Each party shall bear its

own costs and fees as to this Motion;
(2)

The Joint Motion Regarding Restriction of Exhibits 1 and 2 to Plaintiff’s Motion

to Supplement the Administrative Record [#61] is GRANTED;

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(3)

The Clerk of the Court is DIRECTED to MAINTAIN the following documents

under Level 1 Restriction: [#43; #42-2]; and
(4)

The Clerk of the Court is DIRECTED to DOCKET [#61-1] as the publicly-

accessible version of Exhibit 2 (Redacted) [#42-2] to Plaintiff’s Motion to Supplement the
Administrative Record.

DATED: April 21, 2016

BY THE COURT:

/s/ Nina Y. Wang
.
United States Magistrate Judge

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