OXFORD v. ANTHEM LIFE INSURANCE COMPANY et al

Filing 64

ORDER denying 54 Ms. Oxford's Motion to Strike the Affidavit of Louise Patton. Signed by Judge Tanya Walton Pratt on 9/20/2012. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KARI OXFORD,
Plaintiff,
vs.
ANTHEM LIFE INSURANCE COMPANY
Other Affiliate WELLPOINT, INC.,
MED-ASSIST, INC. SHORT TERM
DISABILITY INSURANCE PLAN,
MED-ASSIST, INC. LONG TERM
DISABILITY INSURANCE PLAN,
Defendants.

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No. 1:11-cv-00507-TWP-DML

ENTRY ON PLAINTIFF’S MOTION TO STRIKE
This matter is before the Court on Plaintiff’s Motion to Strike the Affidavit of Louise
Patton. (Dkt. 54). Plaintiff Kari Oxford contends the affidavit, which was filed with
Defendants’ response in opposition to summary judgment, must be stricken as under Federal
Rule of Civil Procedure 37(c). Defendants argue Rule 37(c) does not apply to the affidavit, and
regardless there is substantial justification for the affidavit. Because the Court finds Defendants
were justified in filing the affidavit, Ms. Oxford’s motion is DENIED.
Ms. Oxford contends that Defendants failed to disclose Ms. Patton as a witness during
discovery, and therefore, Ms. Patton’s affidavit should be stricken under Rule 37(c). Rule 37(c)
provides that when a party fails to identify a witness as required by Rule 26(a) or (e), “the party
is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or is harmless.” Defendants argue that in
this case, the parties did not exchange initial disclosures under Rule 26(a), and therefore there
can be no violation of Rule 37(c).

Even if Rule 37(c) applies, however, Defendant argues it is substantially justified in filing
Ms. Patton’s affidavit. In Ms. Oxford’s motion for summary judgment, she argued that the
claims department was associated with the finance and underwriting departments, which
enhanced the conflict of interest in the case. In response, Defendants filed the affidavit of Ms.
Patton to rebut Ms. Oxford’s argument and show that the disability department is a wholly
separate entity.
In responding to a motion for summary judgment, a party is not limited to obtaining
evidence from only those witnesses previously identified in discovery, especially for rebuttal and
impeachment evidence. In this case, Ms. Patton’s affidavit was offered in an attempt to rebut
Ms. Oxford’s evidence showing a conflict of interest. The Court finds this was a substantial
justification for offering the affidavit. The Court does not decide whether Rule 37(c) is
applicable in this case, because regardless, Ms. Patton’s affidavit is properly offered.
CONCLUSION
Ms. Oxford’s Motion to Strike the Affidavit of Louise Patton (Dkt. 54) is DENIED.

SO ORDERED.

09/20/2012
Date: _____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Kristopher N. Kazmierczak
KATZ & KORIN P.C.
[e-mail]
Nicholas Thomas Lavella
O'RYAN LAW FIRM
[e-mail]
Bridget L. O'Ryan
O'RYAN LAW FIRM
[e-mail]
Amanda Lynn Yonally
O'RYAN LAW FIRM
[e-mail]
Sally F. Zweig
KATZ & KORIN P.C.
[e-mail]