Owens v. Liberty Life Assurance Company of Boston

Filing 53

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 8/25/2016 re 47 Motion for Reconsideration. Defendant's motion for reconsideration and, in the alternative, for extension of time is DENIED IN PART and DEFERRED IN PART. The motion for reconsideration of DN 26 is DENIED. The motion for extension of time to respond to interrogatory 15 is DEFERRED pending a conference call to discuss the issue. cc: Counsel(JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:15-CV-00071-JHM-HBB

PAULETTE OWENS

PLAINTIFF

VS.

LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON

DEFENDANT

MEMORANDUM, OPINION
AND ORDER
BACKGROUND
Before the Court is the motion of Defendant Liberty Life Assurance Company of Boston
(“Liberty”) for reconsideration, or, in the alternative, for an extension of time in which to provide
discovery responses (DN 47). Plaintiff Paulette Owens (“Owens”) has responded in opposition
(DN 49), and Liberty has filed its reply (DN 52). The matter stands submitted to the undersigned
Magistrate Judge for ruling.1

1

Liberty’s reply pleading refers to the undersigned as “Magistrate.” The office of magistrate in Kentucky is an
elected non-judicial position of local county governance. The Judicial Improvements Act of 1990 designed the
judicial office of the federal court as that of “United States Magistrate Judge.” While no offense was intended or
taken, the correct title is “Magistrate Judge” or simply “Judge.”

NATURE OF THE MOTION
In a previous motion Owens moved for permission to undertake discovery in this case
(DN 14). Liberty opposed the motion (DN 18). The undersigned partially granted and partially
denied the motion in DN 26.2 With regard to Owens’ Interrogatory number 15, the undersigned
ruled as follows:
Interrogatories number 14 and 15 seek information about the
overall nature of Liberty’s relationship with the medical opinion
providers, including the number of opinions they have provided to
Liberty, the total compensation paid to them by Liberty, and the
number of opinions which support or did not support Liberty’s
decision to deny a claim (DN 14-2 p. 16-17). Interrogatory number
15 goes further in the inquiry and seeks information specific to the
individuals providing a medical opinion (Id.).
In opposing the requests for information, Liberty acknowledges
that a recent decision from the Eastern District of Kentucky,
Brainard v. Liberty Life Assur. Co. of Boston, No. 6:14-cv-110,
2014 U.S. Dist. LEXIS 178492 (E.D. Ky. Dec. 30, 2014),
permitted discovery of statistical information, but argues, in
essence, that the court was simply mistaken in arriving at that
conclusion and the ruling imposed an unreasonable hardship on it
in assembling the information. Notwithstanding Liberty’s
dissatisfaction with the state of the law, such discovery regarding
third-party medical reviewers is, for the most part, permitted.
“ERISA claimants may seek discovery related to ‘third-party
vendors whose opinions or reports may have been unduly
influenced by financial incentives.’” Davis, 2015 U.S. Dist. LEXIS
158313, *23 (W.D. KY., Nov. 24, 2015) (quoting Gluc v.
Prudential Life Ins. Co. of Am., 309 F.R.D. 406, 410 (W.D. Ky.
2015)). This information includes contractual connections with the
provider and financial compensation paid to the reviewing entity.
Id. It also includes statistical information about numbers of files
sent to reviewers and the number of denials which result. Id. at
*28-30. Discovery in this area, however, is limited to those
reviewers who actually participated in the determination of Owens’
claim. As the court in Pemberton noted: “the plaintiff’s request for
the statistical data has been sufficiently narrowed to include only
those reviewers who were involved in the plaintiff’s claim.”
Pemberton, 2009 U.S. Dist. LEXIS 2070, at *10.
2

Liberty filed an objection to the order at DN 29. Chief District Judge Joseph H. McKinley, Jr. overruled the
objection at DN 42.

2

Portions of Owens’ interrogatory number 15, however, include
requests for information which are impermissible “reviewer
credibility” inquiries. These requests are the process by which the
reviewer was selected and the steps taken to ensure the reviewer
has appropriate medical training. “These credibility-type requests
are unlikely to lead to evidence of any claim of bias or conflict of
interest.” Mullins, 267 F.R.D. at 514 (quoting Raney v. Life Ins.
Co. of N. Am., No. 08-cv-169-JMH, 2009 U.S. Dist. LEXIS
34098, at *9 (E.D. Ky. Apr. 20, 2009)). For this reason, subparts
(a) and (b) of interrogatory number 15 are disallowed. As to all of
Owens’ requests, Liberty is not required to provide information for
more than the last ten years. See Davis, 2015 U.S. Dist. LEXIS
158313, at *30. Consequently, Owens’ motion for discovery under
interrogatory numbers 12-15 is GRANTED in part and DENIED in
part. Only information related to the medical reviewers involved in
Owens’ claim is relevant. Subparts (a) and (b) of interrogatory
number 15 are disallowed. Liberty need not provide information
that spans a time period of longer than ten years.

(DN 26, p. 16-17) (emphasis in original).
In the present motion, Liberty seeks reconsideration of the portion of the order directing
its response to interrogatory 15. That interrogatory requested information about opinions from
medical reviewers and specifically asked that Liberty state the number of medical opinions the
reviewer provided to Liberty that did support Liberty’s decision to deny a claim and the number
of medical opinions the reviewer provided that did not support Liberty’s decision to deny a claim
(DN 14-2, p. 17 at interrogatory no. 15, ¶¶ (e) and (f)).
Liberty argues that the requested discovery is not proportional to the needs of the case, as
required by Fed. R. Civ. P. 26(b).

Liberty asserts that the number of times a reviewing

physician’s opinion does or does not support Liberty’s denial of a claim is “of limited
importance to determining whether or not Liberty’s decision to deny benefits was arbitrary or

3

capricious” (DN 47-1, p. 2). Liberty explains that it requests a physician’s opinion as to the
claimant’s medical impairments and conditions and any restrictions or limitations imposed by
those impairments or conditions. This opinion, Liberty contends, is only part of the information
considered by the disability case manager or appeal review consultant in arriving at a benefits
decision. Liberty notes that not all cases are referred to a physician for an opinion, as there may
be sufficient evidence of disability, such as the reports of a treating physician, that a consulting
physician opinion is unnecessary. Additionally, there are instances where an initial opinion of
non-disability is overturned upon submission of additional evidence from the claimant. Finally,
Liberty notes that each claim presents unique facts and circumstances. For these reasons, Liberty
contends that any effort to draw a statistical correlation is unreliable and the importance of the
information in resolving the case is nominal. Liberty additionally argues that the amount in
controversy in the case is low, in light of Owens’ receipt of Social Security Disability benefits.
Liberty estimates the amount in controversy at $15,589.
Finally, Liberty argues that the burden of producing the information is disproportionate to
the needs of the case. Liberty contends it does not maintain independent records regarding the
number of times a reviewing physician does or does not support denial of claim and, as such, an
individual file-by-file review would be required. In this case, Liberty would be required to
manually review 4,332 medical opinions during the relevant period.
Owens responds in opposition to Liberty’s motion that it does not satisfy the criteria for
reconsideration because it is not based on a change in controlling law, new evidence or the need
to correct a clear error or manifest injustice.3 To the contrary, Owens argues that Liberty made
the same general argument in opposition to the original motion, and lost. To the extent Liberty
3

Liberty did not specify the civil rule under which it advanced its motion. Owens characterizes Liberty’s motion as
one under Fed. R. Civ. P. 59, however, non-final orders are challenged under Rule 54(b). See Reed, infra, at *7, fn.
3.

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offers detailed information regarding the number of files to be reviewed and the time required for
review, Owens contends that Liberty could, and should, have provided this information in the
original opposition. Finally, Owens disputes Liberty’s assessment of the amount in controversy
in the case, and calculates a claim in excess of $252,000.
In reply, Liberty notes that its original opposition to Owen’s request for discovery
included an estimation that it would need to conduct a file-by-file review of over 990,000 files to
answer interrogatory number 15, and that this was not “proportional to the needs of the case.”
Once Liberty’s objection to the order granting discovery was overruled, and its obligation to
respond to interrogatory number 15 was clear and defined, Liberty states that it ascertained that it
would in fact have to review 4,332 claim files in order to provide the requested statistical
information. As such, this constitutes “newly discovered evidence,” and a proper basis upon
which to ask for reconsideration.
Discussion
Owens has accurately framed the threshold inquiry as one of whether Liberty’s motion
satisfies the criteria required for reconsideration. This Court recently outlined the relevant legal
principles in Reed v. Gulf Coast Enters., No. 3:15-CV-00295-JHM, 2016 U.S. Dist. LEXIS
95183, *6-7 (W.D. Ky. Jan. 6, 2016):
The Sixth Circuit recognizes that a district court has authority both
under common law and under Rule 54(b) "to reconsider
interlocutory orders and to reopen any part of a case before entry
of final judgment." Rodriguez v. Tenn. Laborers Health & Welfare
Fund, 89 F. App'x 949, 959 (6th Cir. 2004). "Traditionally, courts
will find justification for reconsidering interlocutory orders when
there is (1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent
manifest injustice." Id. (citing Reich v. Hall Holding Co., 990 F.
Supp. 955, 965 (N.D. Ohio 1998)); see also United States v.
Lexington-Fayette Urban County Gov't, No. 06-386-KSF, 2008
5

U.S. Dist. LEXIS 77478, at *3, 2008 WL 4490200, at *1 (E.D. Ky.
Oct. 2, 2008); Edmonds v. Rees, No. 3:06-CV-P301-H, 2008 U.S.
Dist. LEXIS 61839, at *7, 2008 WL 3820432, at *2 (W.D. Ky.
Aug. 13, 2008). A motion to reconsider under Rule 54(b) may not,
however, "serve as a vehicle to identify facts or raise legal
arguments which could have been, but were not, raised or adduced
during the pendency of the motion of which reconsideration [is]
sought." Owensboro Grain Co., LLC v. AUI Contr., LLC, No.
CIV.A. 4:08CV-94-JHM, 2009 U.S. Dist. LEXIS 18025, at *6,
2009 WL 650456, at *2 (W.D. Ky. Mar. 10, 2009) (quoting Jones
v. Casey's Gen. Stores, 551 F. Supp. 2d 848, 854-55 (S.D. Iowa
2008)). "Motions for reconsideration are not intended to re-litigate
issues previously considered by the Court or to present evidence
that could have been raised earlier." Ne. Ohio Coal. for Homeless
v. Brunner, 652 F. Supp. 2d 871, 877 (S.D. Ohio 2009). "The
moving party has the burden of showing that reconsideration is
warranted, and that some harm or injustice would result if
reconsideration were to be denied." Pueschel v. Nat'l Air Traffic
Controllers' Ass'n, 606 F. Supp.2d 82, 85 (D.D.C. 2009).
Here, Liberty was aware that it would have to review a significant number of files in
order to respond to interrogatory number 15 when it advanced its initial opposition to Owens’
motion for discovery. Liberty argued that, in another case4 in which it was required to provide
information about third-party medical reviewers, “it took Liberty several months to pull together
the statistical information regarding the medical reviewers in Brainard due to the fact that
information regarding the medical reviewers is kept in the individual claim files and are not
readily – or even reasonably – available” (DN 18, p. 22). In support of this argument of undue
burden, Liberty cited answers to interrogatories it attached as an exhibit to its memorandum (DN
18-1). Those interrogatory answers were from a case captioned Suzette Scott-Warren v. Liberty
Life Assur. Co. of Boston, No. 3:14-cv-738-CRS (W.D. Ky.), in which Liberty responded to a
similar interrogatory with an estimate that it would have to review “well over 990,000 claim
4

Brainard v. Liberty Life Assur. Co. of Boston, No. 6:14-cv-110, 2014 U.S. Dist. LEXIS 178492 (E.D. Ky. Dec. 30,
2014)

6

files” (DN 18-1, p. 14). Thus, Liberty knew when it filed its opposition to the motion for
discovery that it would have to review a significant number of files at significant expense.
However, despite this knowledge, Liberty only mounted opposition based on what it had
experienced in other cases and did not undertake an evaluation of what would be required in this
case until after its objection had been overruled. Liberty previously advocated that the burden of
production is disproportionate to the value of this case, both in the response to Owens’ motion
for discovery and in its objection to the order granting discovery.5 The precise number of files
which Liberty has subsequently determined it must review in order to respond to interrogatory
number 15 is not “new evidence” which was previously unavailable.
The undersigned concludes that Liberty is not entitled to reconsideration of the portion of
the prior order granting discovery under Owens’ interrogatory number 15. In anticipation of the
possibility that the motion might not be granted, Liberty has requested in the alternative that it be
granted an additional extension of 75 days to August 15, 2016 in which to respond to the
interrogatory. Due to the time permitted for the response and reply to the motion, the requested
extension has already expired. It is therefore unclear if additional time is required. A conference
call will be scheduled to resolve this issue.

5

Liberty argued in the objection that “Liberty does not maintain the information sought by Pl in any type of
aggregate form. Thus, in order to respond to the request, Liberty Life would have to perform a file-by-file review of
all the claims submitted to Liberty Life. Between 2009 and 2013 alone, there were over 990,000 disability claims
submitted to Liberty Life that would have to be reviewed” (DN 29, p. 14).

7

ORDER
WHEREFORE, Defendant’s motion for reconsideration and, in the alternative, for
extension of time is DENIED IN PART and DEFERRED IN PART.
reconsideration of DN 26 is DENIED.

The motion for extension of time to respond to

interrogatory 15 is DEFERRED pending a conference call to discuss the issue.

August 25, 2016

Copies:

The motion for

Counsel

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