Foster v. Principal Life Insurance Company et al

Filing 61

ORDER denying 39 Motion for New Trial; denying 39 Motion to Alter Judgment; denying 39 Motion for Reconsideration. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
AMANDA C. FOSTER

CIVIL ACTION

VERSUS

CASE NO. 16-1270

PRINCIPAL LIFE INSURANCE COMPANY, et al.

SECTION: “G”(2)

ORDER AND REASONS
Before the Court is Plaintiff Amanda Foster’s (“Foster”) “Motion for Reconsideration/New
Trial/and/or to Amend or Alter Judgment Under Rule 59.”1 This is an action for review of the
denial of long-term disability benefits and life insurance waiver of premium benefits under an
employee welfare benefit plan governed by the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001, et seq. (“ERISA”). The parties, Foster and Defendant Principal Life
Insurance Company (“Principal”), filed cross motions for judgment on the administrative record.2
On November 21, 2017, the Court entered judgment in favor of Principal.3

Foster seeks

reconsideration under Rule 59(e). Having considered the motion, the memoranda in support and
opposition, the record, and the applicable law, the Court will deny Foster’s motion.
I. Background
On July 8, 2013, Foster filed a claim for long-term disability (“LTD”) benefits pursuant to
a Group Policy issued by Principal, alleging that she was “unable to practice law due to pain of

1

Rec. Doc. 39.

2

Rec. Docs. 25, 26.

3

Rec. Doc. 30.

1

headaches” as of March 8, 2013.4 On February 3, 2016, after multiple administrative hearings,
Principal denied her claim and informed Foster that all administrative appeal options had been
exhausted.5
On February 12, 2016, Foster filed a complaint in this Court, alleging that she was
wrongfully denied ERISA disability benefits.6 On February 13, 2017, Foster and Principal filed
cross motions for judgment on the administrative record.7 On July 13, 2017, and September 19,
2017, Foster underwent neurostimulator implant procedures.8 On November 21, 2017, this Court
granted Principal’s motion for judgment as a matter of law and entered judgment in favor of
Principal.9
On December 19, 2017, Foster filed the instant motion for reconsideration asserting that
the Court should consider the newly discovered evidence.10 On January 9, 2018, Principal filed a
response in opposition to Foster’s motion.11 On January 25, 2018, with leave of Court, Foster filed
a reply brief.12 Oral argument regarding the motion for reconsideration was held on January 24,
2018.13 At oral argument, the Court granted the parties leave to file supplemental briefing

4

AR 5634.

5

Rec. Doc. 26-1 at 15.

6

Rec. Doc. 1.

7

Rec. Docs. 25, 26.

8

Rec. Doc. 39-2 at 11, 13.

9

Rec. Docs. 37, 38.

10

Rec. Doc. 39.

11

Rec. Doc. 45.

12

Rec. Docs. 51, 52.

13

Rec. Doc. 50.

2

regarding Plaintiff’s argument that the Court’s judgment contains manifest errors of law and fact.14
On February 1, 2018, Foster filed a supplemental memorandum to the motion for
reconsideration.15 On February 22, 2018, Principal filed a reply memorandum in response to
Foster’s supplemental memorandum.16
II. Parties’ Arguments
A.

Foster’s Arguments in Support of the Motion for Reconsideration; Alleged New
Evidence
Foster asserts that “the Court should consider the attached newly discovered evidence that

was not available when this matter was tried.”17 Foster asserts that the Court’s November 21, 2017
decision “was made in light of the medical records, opinions from various treating doctors, an IME
doctor, and doctors hired by Principal.”18 Therefore, Foster argues that “evidence bearing on the
severity of her condition is critical in helping the Court reach the correct decision and to avoid
manifest injustice.”19
Specifically, Foster asserts that the Court should consider updated medical records
demonstrating that she recently underwent a neurostimulator implant to “help control her
headaches.”20 According to Foster, the device was inserted “into her left breast” and “contains four
leads that run over her shoulder, up her cervical, and into the base of her skull.”21 Foster avers that

14

Id.

15

Rec. Doc. 54.

16

Rec. Doc. 60.

17

Rec. Doc. 39-1 at 1.

18

Id. at 3.

19

Id.

20

Id.

21

Id.

3

no one would undergo this invasive procedure “unless they were actually suffering from
debilitating headaches.”22 Thus, Foster concludes that “[t]he attached newly discovered evidence
should be considered in order to prevent manifest injustice.”23
B.

Principal’s Arguments in Opposition to the Motion for Reconsideration; Evidence
Available When Decision was Rendered
Principal first asserts that reconsideration is not warranted because Foster’s motion does

not present newly discovered evidence, as “the medical treatment underlying Foster’s motion was
rendered and received in July and September 2017.”24 Principal argues that “[a]s the Court’s
judgment was not entered until November 21, 2017, Foster had ample time to attempt to
supplement the record and present this additional information to the Court prior to the judgment
on the parties’ cross-motions.”25 Moreover, Principal asserts that continued medical treatment is
“likely inherent” in disability cases.26 Principal further argues, “If a plaintiff were able to question
a court’s determination based on such continued treatment evidence, no court decision in a
disability case would ever be final but always subject to revisions based on subsequent treatment
records.”27
Alternatively, even if the medical records were newly discovered evidence, Principal
contends that reconsideration is not warranted.28 Principal notes that the Court’s review of the
administrative decision is subject to an arbitrary and capricious standard of review and limited to
22

Id.

23

Id.

24

Rec. Doc. 45 at 3.

25

Id.

26

Id.

27

Id.

28

Id. at 4.

4

consideration of the record before the claims administrator.29 Principal further states that there are
only two exceptions to this rule, evidence interpreting the plan or evidence explaining medical
terms and procedures, and neither of the exceptions apply here.30
C.

Foster’s Reply Memorandum in Further Support of the Motion for Reconsideration
In the reply brief, Foster asserts that the medical records were not available when the cross

motions for judgment on the pleadings were submitted to the Court on March 15, 2017.31
Moreover, Foster contends that the Court may consider evidence that was not part of the
administrative record under special circumstances.32 In support of this assertion, Foster cites a
Tenth Circuit case, Hall v. UNUM Life Insurance Company of America, which she asserts held
that the court could consider evidence of additional surgeries that were outside the administrative
record.33 Foster notes that the benefit denial in Hall was considered under a de novo standard of
review, whereas this case is subject to an arbitrary and capricious standard of review.34
Nevertheless, Foster asserts that Hall provides guidance as to when evidence outside the
administrative record should be considered.35
Moreover, Foster contends that the evidence is admissible because it “helps the Court
understand the medical terminology associated with migraine disorder as well as the practice

29

Id. (citing Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 508 (5th Cir. 2017)).

30

Id. (citing Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 521 (5th Cir. 2000)).

31

Rec. Doc. 52 at 1.

32

Id. at 1–2.

33

Id. at 2 (citing 300 F.3d 1197, 1206 (10th Cir. 2002)).

34

Id.

35

Id.

5

related to the diagnosis and treatment of migraine disorder.”36 Foster asserts that “[t]he Court
seems to have been influenced by opinions of two of Principal’s reviewing doctors who opined
that Foster was suffering from anxiety and depression, and/or her headache disorder was opioid
induced or psychosomatic, rather than a headache disorder.”37 According to Foster, “[t]he proffered
evidence helps the Court understand the medical terminology and practice related to treatment of
Foster’s headache disorder in that it demonstrates that her headaches are indeed real and severe,
as no one elects to have wires surgically implanted inside their body unless they are suffering from
debilitating headaches.”38 Alternatively, Foster notes that the Court could remand this matter to
Principal for consideration of its previous decision in light of this evidence.39 Finally, Foster asserts
that she “is prepared to demonstrate in her appeal to the Fifth Circuit why the Court’s decision
contains both manifest factual and legal errors.”40
D.

Foster’s Supplemental Memorandum in Support of Motion for Reconsideration
In the supplemental briefing, Foster asserts that the Court’s November 21, 2017 judgment

in favor of Principal contains manifest errors of law and fact.41 First, Foster argues that the Court
erred in finding both that Foster failed to provide the specific duties of her job to Principal and that
Principal considered the actual duties of her job when analyzing her claim.42 Foster alleges that
the administrative record contains evidence of the specific job requirements of a healthcare

36

Id. at 3 (citing Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 521 (5th Cir. 2000)).

37

Id. at 3 (citing Rec. Doc. 37 at 54–55).

38

Id.

39

Id. at 4.

40

Id.

41

Rec. Doc. 54 at 1.

42

Id. at 2.

6

attorney.43 Specifically, Foster contends that her employer provided a job description and Foster
herself listed her job duties on her disability application.44
Moreover, Foster contends that contrary to the Court’s finding, her treating physicians and
two of Principal’s physicians, determined that Foster’s migraine disorder precluded her from
performing the material duties of her job, including “meeting deadlines, handling stress,
unpredictability of absences, prolonged computer use, prolonged light exposure, intellectual
challenges of handling complex situations, etc.”45 By contrast, Foster avers that neither Principal
nor its reviewing doctors “opined on [Foster’s] ability to perform the actual job duties of a
healthcare attorney.”46 Foster argues that Principal simply asked its reviewing doctors if they
believed Foster could perform a sedentary job on a fulltime basis, which she asserts was
insufficient under an “own occupation” policy.47 Furthermore, Foster avers that stress, a trigger
for her headaches, was never addressed by Principal or the reviewing doctors.48 Similarly, Foster
contends that Principle abused its discretion by failing to consider her medical condition in light
of the intellectually challenging job demands.49 Therefore, Foster believes that Principal’s failure
to analyze her medical condition in light of the specific job demands amounted to an abuse of
discretion.50

43

Id. at 2–3.

44

Id. at 2–3 (citing AR 1183, 545, 1239–45).

45

Id. at 3–5.

46

Id. at 6.

47

Id.

48

Id. at 7–8.

49

Id. at 8.

50

Id. at 8–10.

7

Second, Foster argues that the Court erred in finding that there was no objective or clinical
evidence of functionally impairing headaches.51 Foster contends that other courts have found that
insurers abuse their discretion when denying a disability claim based on a migraine disorder for
lack of objective evidence because a migraine disorder does not present results on neurological
testing.52 Foster asserts that her treating physicians, her social worker, the IME doctor, and at least
two of Principal’s reviewing doctors agreed that there was specific clinical evidence supporting
that she suffers from functionally impairing headaches.53 Foster contends that Drs. Hoenig and
Miller were the only neurologists to opine that there was a lack of clinical evidence supporting
debilitating migraine headaches.54 According to Foster, these opinions were entirely inconsistent
with her medical records, and amount to “blatant cherry-picking.”55 Therefore, Foster asserts that
“the Court erred in refusing to find that Plaintiff’s headache disorder, which is based on subjective
symptoms, was not proven to be functionally impairing when the basis for this notion is that her
neurological testing was normal.”56
Third, Foster argues that the Court erred in finding that Foster suffers from mental illness
as opposed to a headache disorder.57 Foster posits that the Court’s order erroneously adopted

51

Id. at 10.

Id. at 11–12 (citing Hegarty v. AT&T Umbrella Benefit Plan No. 1, 109 F. Supp. 3d 1250, 1258 (N.D. Cal. 2015);
Boyd v. Liberty Life Assurance Co. of Boston, 362 F. Supp. 2d 660, 669 (W.D.N.C. 2005); Fisher v. Aetna Life Ins.
Co., 890 F. Supp. 2d 473, 483 (D. Del. 2012); Creel v. Wachovia Corp., 2009 WL 179584, at *8 (11th Cir. 2009)).
52

53

Id. at 12.

54

Id. at 15.

55

Id.

56

Id. at 16.

57

Id.

8

Principal’s argument that Foster’s headaches are psychosomatic and/or result from opioid abuse.58
Furthermore, Foster argues that in rendering its decision, the Court erred in accepting the opinions
of Principal’s reviewing doctors that Foster’s headaches are either psychosomatic and/or opioid
induced, which she contends ignored the evidence that she has experienced headaches since
childhood.59 Therefore, Foster claims that Principal failed to analyze all pertinent evidence in its
denial of her claims and only focused upon the evidence supporting its determination.60
Fourth, Foster argues that the Court erred in finding the administrator did not abuse its
discretion by denying life insurance waiver of premium (“LWOP”) benefits, as Principal failed to
provide evidence of alternative occupations that it believes Foster should be able to perform.61
Foster avers that Principal failed to perform a vocational assessment to identify any alternative
occupation that Foster could perform based upon her limitations.62 Furthermore, Foster argues that
the Court erred in finding that she lost her eligibility for the LWOP benefits upon her failed attempt
to reduce her hours to continue working.63 Foster argues that by denying her claim the Court is
“unfairly penalizing” her for trying to continue working.64 In support of her argument, Foster avers
that under 29 U.S.C § 1104, “Principal cannot penalize a claimant for trying to continue to work

58

Id. at 17.

59

Id.

60

Id. Alternatively, Foster also contends that the issue of whether the 24-month limitation applied—an issue that the
Court did not reach—is not properly before the Court because Principal did not terminate benefits due to that
limitation. Id. at 19–20.

61

Rec. Doc. 54 at 20.

62

Id. at 21.

63

Id.

64

Id. at 22.

9

as much as possible when she should have taken fulltime disability leave instead.”65 Accordingly,
for these reasons, Foster asserts that the Court should enter judgment in her favor as originally
requested in her motion for judgment on the pleadings.66
E.

Principal’s Response to Foster’s Supplemental Memorandum in Support of the Motion
for Reconsideration
In the supplemental memorandum, Principal avers that Foster’s supplemental brief is

“devoid . . . of an explanation how her disagreement with the Court’s ruling amounts to a manifest
error of law or fact by the Court and how her regurgitation of arguments previously raised
constitutes a proper motion for reconsideration.67 Principal asserts that all of Foster’s arguments
included in the supplemental brief were addressed by the Court in its prior opinion, and Foster’s
mere disagreement with the Court’s decision is not a proper basis for reconsideration.68
First, Principal notes that Foster raised the argument that her medical condition needed to
be analyzed in relation to the actual duties of her occupation was addressed in the Court’s prior
opinion.69 Principal posits that the Court acknowledged the argument and explained that, although
Foster had described her “specific job requirements,” she had failed to provide evidence linking
her inability to work directly to those requirements.70 Furthermore, Principal contests Foster’s
assertion that Principal evaluated Foster’s occupation as sedentary rather than considering the nonexertional aspects of her occupation, noting that the denial letter discussed Foster’s ability to write,

65

Id.

66

Id.

67

Rec. Doc. 60 at 1.

68

Id. at 2–3.

69

Id. at 4.

70

Id.

10

focus, and concentrate.71 Principal avers that its “determination is supported by substantial
evidence, including a detailed evaluation of the non-exertional aspects of [Foster’s] occupation.”72
Second, Principal argues that the Court applied the proper objective evidence standard and
that Foster misrepresents the distinction made by the Court between objective evidence of Foster’s
actual headaches and objective evidence of the loss of function Foster claimed to experience as a
result of the headaches.73 Principal claims that Foster has only pointed to evidence of her own selfreports to her physicians and her slightly diminished IQ, neither of which objectively evidence an
inability to work.74 Therefore, Principal argues that the Court did not err in finding that Principal’s
decision was supported by substantial evidence.75
Third, Principal argues that Foster mischaracterizes the Court’s discussion of Principal’s
argument in connection with the mental health limitation provision in the group policy.76 Principal
avers that in examining Principal’s argument on this point, the Court held that Principal did not
abuse its discretion in concluding that Foster is not entitled to any benefits under the Group Policy
and did not rule on the nature of Foster’s condition.77

71

Id. at 7.

72

Id.

73

Id. at 9.

74

Id. at 11.

75

Id.

76

Id.

77

Id. at 12–13. Further, Principal argues that Foster’s attempt to rehash arguments pertaining to the issue of whether
the 24-month limitation provision was properly before the Court should be rejected because the Court’s decision was
not based on that argument. Id. at 13–14.

11

Fourth, Principal argues that Foster fails to point to anything that would support that the
Court made a manifest error of law or fact pertaining to her claim regarding her LCDD claim.78
Principal argues that its “reasonable decision regarding [Foster’s] lack of entitlement to benefits
under the stricter Own Occupation definition of disability under the Group Disability Policy
disqualifies Plaintiff from LCDD benefits under the less strict any occupation definition of
disability in the Group Life Policy.”79 Principal avers that Foster’s claim that Principal should have
conducted a vocational assessment is a “red herring” because no vocational assessment was
necessary since Principal had already determined that Foster had the functional capacity to perform
the duties of her own occupation.80
Further, as to Foster’s argument regarding her loss of “Member” status under the Group
Life Policy due to her reduction of hours, Principal argues that under the terms of the Group Life
Policy Foster clearly lost her coverage when she reduced her hours below full-time work.81 Finally,
with respect to Foster’s argument that Principal cannot penalize Foster for attempting to continue
working under 29 U.S.C. § 1104 (ERISA’s fiduciary duties provision), Principal argues that as a
fiduciary it must consider all participants in discharging its duties.82 Thus, Principal avers that
allowing benefits to a claimant who under the clear language of the policy is not entitled to them
would indeed be a breach of the fiduciary’s duties to the remaining participants.83 As a result,

78

Id. at 14.

79

Id.

80

Id. at 15.

81

Id. at 16.

82

Id.

83

Id. at 16–17.

12

Principal concludes, Foster’s motion failed to show any manifest errors in law or fact in the Court’s
opinion and should be denied.84
III. Legal Standard
Federal Rule of Civil Procedure 59(e) allows courts to alter or amend its judgments after
entry. The Court has “considerable discretion” in deciding whether to grant a motion for
reconsideration, but must “strike the proper balance between two competing imperatives: (1)
finality and (2) the need to render just decisions on the basis of all facts.”85 This Court’s discretion
is further bound by the Fifth Circuit’s instruction that reconsideration is an “extraordinary remedy
that should be used sparingly,”86 with relief being warranted only when the basis for relief is
“clearly establish[ed].”87 Courts in the Eastern District of Louisiana have generally considered
four factors in deciding motions for reconsideration under the Rule 59(e) standard:
(1) the motion is necessary to correct a manifest error of law or fact on which the
judgment is based;
(2) the movant presents newly discovered or previously unavailable evidence;
(3) the motion is necessary in order to prevent manifest injustice; or
(4) the motion is justified by an intervening change in controlling law.88

84

Id. at 17.

85

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

86

Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

87

Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo v. Am. Home Mortgage Servicing
Inc., No. 09-4369 R, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.).

88

See, e.g., Castrillo v. Am. Home Mortgage Servicing Inc., No. 09-4369 R, 2010 WL 1424398, at *4 (E.D. La. Apr.
5, 2010) (Vance, J.) (citations omitted).

13

A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal
theories, or arguments . . . .’”89 Instead, such motions “serve the narrow purpose of allowing a
party to correct manifest errors of law or fact or to present newly discovered evidence.”90 “It is
well settled that motions for reconsideration should not be used . . . to re-urge matters that have
already been advanced by a party.”91 When there exists no independent reason for reconsideration
other than mere disagreement with a prior order, reconsideration is a waste of judicial time and
resources and should not be granted.92
IV. Analysis
A.

Whether Reconsideration is Warranted for Consideration of Alleged “Newly Discovered
Evidence”
Foster argues that reconsideration is warranted for consideration of “newly” discovered

evidence; specifically, updated medical records demonstrate that she recently underwent a
neurostimilator implant to help control her migraine headaches.93 Defendant asserts that Plaintiff
does not present newly discovered evidence, as Plaintiff’s procedures occurred before the Court’s
November 21, 2017 judgment.94 In the reply brief, Foster contends that the medical records were

89

Id. (quoting Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004)).

90

See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (citation and internal quotation marks omitted).

91

Helena Labs. Corp. v. Alpha Sci. Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v. Navarro,
894 F.2d 99, 100 (5th Cir. 1990)).

92

Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002). See also
Mata v. Schoch, 337 B.R. 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was presented);
FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely disagreed
with the court and did not demonstrate clear error of law or manifest injustice).

93

Rec. Doc. 39-1 at 2–3.

94

Rec. Doc. 45 at 3.

14

not available when the cross motions for judgment on the pleadings were submitted to the Court
on March 15, 2017.95
In Ferraro v. Liberty Mutual Fire Insurance Co., the Fifth Circuit affirmed this Court’s
denial of a motion for reconsideration, where the plaintiffs argued that an email from the defendant
constituted newly discovered evidence not presented at trial under Rule 59(e).96 The Fifth Circuit
stated that “[a] motion to reconsider based on an alleged discovery of new evidence should be
granted only if (1) the facts discovered are of such a nature that they would probably change the
outcome; (2) the facts alleged are actually newly discovered and could not have been discovered
earlier by proper diligence; and (3) the facts are not merely cumulative or impeaching.”97 The Fifth
Circuit held that the plaintiffs did not show “that the email is ‘the type of new evidence that a truly
diligent litigant would be powerless to unearth’ prior to summary judgment.”98 The Fifth Circuit
reasoned that the email’s date stamp showed that the information was available to the plaintiffs
during the course of litigation, and the plaintiffs did not offer any reason why they did not include
the email in the opposition to defendant’s motion for summary judgment.99 Moreover, although
the Fifth Circuit noted that the evidence may have supported the plaintiffs’ theory of the case, the
court ultimately determined that the plaintiffs had not “carried their burden to show that
consideration of these new facts ‘would probably change the outcome,’ of their suit.”100

95

Rec. Doc. 52 at 1.

96

Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 535 (5th Cir. 2015).

97

Id. (quoting Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010)).

98

Id. (quoting Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995)).

99

Id.

100

Id. (quoting Johnson, 597 F.3d at 673).

15

Here, Foster underwent the trial procedure on July 13, 2017, and had the neurostimilator
implanted on September 19, 2017.101 Therefore, the medical procedures occurred well before entry
of the Court’s November 21, 2017 judgment. Foster argues that the procedures were not performed
until after the cross motions for judgment on the pleadings were submitted to the Court. However,
Foster has not provided any reason why she did not request leave of Court to file the evidence
prior to the entry of judgment. Thus, Plaintiff has made no argument that this evidence was “newly
discovered” pursuant to Rule 59(e) and has not “clearly established” that reconsideration is
warranted.102
Moreover, Foster has not shown that consideration of this evidence “would probably
change the outcome” of her suit.103 “A long line of Fifth Circuit cases stand for the proposition
that, when assessing factual questions, the district court is constrained to the evidence before the
plan administrator.”104 Therefore, “[o]nce the administrative record has been determined, the
district court may not stray from it but for certain limited exceptions, such as the admission of
evidence related to how an administrator has interpreted terms of the plan in other instances, and
evidence, including expert opinion, that assists the district court in understanding the medical
terminology or practice related to a claim.”105

101

Rec. Doc. 39-2 at 4–8, 11–14.

102

See Schiller, 342 F.3d at 567; Castrillo, 2010 WL 1424398, at *3.

103

Ferraro, 796 F.3d at 535 (quoting Johnson, 597 F.3d at 673).

104

Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc), overruled on other grounds by,
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008) (citing Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.,
168 F.3d 211, 215 (5th Cir. 1999); Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 394–95 (5th Cir. 1998); Thibodeaux
v. Cont’l Cas. Ins., 138 F.3d 593, 595 (5th Cir. 1998); Barhan v. Ry–Ron Inc., 121 F.3d 198 (5th Cir. 1997); Bellaire
Gen. Hosp. v. Blue Cross Blue Shield of Michigan, 97 F.3d 822, 828–29 (5th Cir. 1996); Sweatman v. Commercial
Union Ins. Co., 39 F.3d 594, 597–98 (1994); Duhon v. Texaco Inc., 15 F.3d 1302, 1306–07 (5th Cir. 1994); S. Farm
Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101–02 (5th Cir. 1993); Wildbur v. ARCO Chem. Co., 974 F.2d 631, 639
(5th Cir. 1992)).
105

Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 215 F.3d 516, 521 (5th Cir. 2000).

16

Foster argues that the Court can consider the medical records, which were not part of the
record before the plan administrator, because the evidence would help the Court understand the
medical terminology associated with migraine disorder as well as the practice related to the
diagnosis and treatment of migraine disorder.106 However, the Court finds this argument
unavailing because Foster clearly attempts to present the medical records to address a factual
question presented in this case, i.e., the severity of Foster’s headaches, and this evidence was not
presented to the plan administrator.107
Finally, Foster asserts that the Court could remand this matter to the administrator for
consideration of the medical records.108 In Offutt v. Prudential Insurance Co. of America, the Fifth
Circuit stated, “If new evidence is presented to the reviewing court on the merits of the claim for
benefits, the court should, as a general rule, remand the matter to the plan administrator for further
assessment . . . No remand is necessary, however, when it would be a useless formality.”109 In
Vega v. National Life Insurance Services, Inc., the Fifth Circuit recognized that “[i]n some special
circumstances a remand to the administrator for further consideration may be justified.”110 Foster
presents no argument that special circumstances justify a remand in this case,111 considering that
she underwent the medical procedures in July and September 2017 but failed to raise the issue

106

Rec. Doc. 52 at 3.

107

Vega, 188 F.3d at 299.

108

Rec. Doc. 52 at 4.

109
735 F.2d 948, 950 (5th Cir. 1984) (citing Wardle v. Cent. States, Se. and Sw. Areas Pension Fund, 672 F.2d 820,
824 (7th Cir. 1980)).
110

188 F.3d 287, 302, n. 13 (5th Cir. 1999).

111

See Rec. Doc. 52 at 4 (“Further, in order to protect against Principal’s argument that it was not given an opportunity
to address this evidence during the administrative process, the Court could remand this matter to Principal for
consideration of its previous decision in light of this information.”).

17

until after a final judgment was entered in November 2017. Therefore, even if the evidence is
considered to be “newly discovered,” Foster has not shown that consideration of this evidence
“would probably change the outcome” of her suit.112
B.

Whether Reconsideration is Warranted due to “Manifest Errors of Law and Fact”
In the supplemental memorandum filed after oral argument, Foster argues that the Court’s

judgment issued in favor of Principal on November 21, 2017, contains numerous “manifest errors
of law and fact.”113 Specifically, Foster raises four issues that she claims warrant reconsideration:
(1) the Court erred in finding that Foster failed to provide her job duties, that Plaintiff could not
perform the material duties of her job, and that Principal considered her actual job duties; (2) the
Court erred in finding no objective or clinical evidence of functionally impairing headaches; (3)
the Court erred in finding that Foster suffers from a mental illness as opposed to a headache
disorder; and (4) the Court erred in finding that Principal did not abuse its discretion in denying
LWOP benefits, as Principal failed to provide evidence of alternative occupations that it believes
Foster should be able to perform.114 Principal argues that Foster’s supplemental brief does not
explain how the Court’s decision includes manifest errors of law or fact and amounts to merely an
expression of Foster’s disagreement with the Court’s opinion by rehashing previously raised
arguments.115
The Court addressed Foster’s claim that Principal abused its discretion in concluding that
Foster was not disabled without addressing Foster’s specific job requirements, noting that Foster

112

Ferraro, 796 F.3d at 535 (quoting Johnson, 597 F.3d at 673).

113

Rec. Doc. 54 at 1.

114

Id.

115

Rec. Doc. 60 at 1.

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did not present any evidence linking her inability to work with any specific job requirements of a
healthcare attorney.116 Moreover, the Court determined that the opinions of Drs. Hoenig, Register,
Harrop, Miller, and Chafetz provided “substantial evidence” to support Principal’s determination
that Foster was not “disabled” as defined by the Group Policy.117
In Corry v. Liberty Life Assurance Co. of Boston, the Fifth Circuit reversed the district
court’s judgment in favor of the plaintiff and upheld the defendant’s denial of ERISA benefits.118
There, the district court granted the plaintiff’s motion for summary judgment, finding that the
defendant abused its discretion in terminating benefits because it failed to consider the plaintiff’s
subjective complaints of pain and disability.119 On appeal, the Fifth Circuit held that the
administrator’s decision to deny the plaintiff’s claim was supported by substantial evidence.120 The
Fifth Circuit found that the administrator and the consulting physicians had considered and
addressed the subjective complaints, and that it was solely the job of the administrator to weigh
those complaints against other valid, conflicting medical opinions.121 Therefore, the Fifth Circuit
determined that “given the three qualified medical experts who found no objective medical
evidence of disability, the administrator, under the established standard of review that restricts the
courts, was not obliged to accept the opinion of [the plaintiff’s] physicians.”122

116
Rec. Doc. 37 at 54 (“Although Foster contends that her physicians concluded that she is unable to work full-time
as an attorney, Foster points to no evidence that addresses the specific job requirements of a healthcare attorney.”).
117

Id. at 55.

118

Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 401 (5th Cir. 2007).

119

Id. at 397.

120

Id. at 401.

121

Id.

122

Id.

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Here, Foster essentially asks the Court to substitute its own judgment for that of the
administrator. As the Court determined in its prior order, the opinions of Drs. Hoenig, Register,
Harrop, Miller, and Chafetz provided “substantial evidence” to support Principal’s determination
that Foster was not “disabled” as defined by the Group Policy, and the administrator was not
obliged to accept the opinion of Foster’s physicians.123 Therefore, Foster has not shown that
reconsideration is necessary to correct a manifest error of law or fact.
Foster’s second argument that the Court erred in finding no objective or clinical evidence
of functionally impairing headaches is equally misplaced. Foster argues that the evidence in the
record supports the claim that she had experienced frequent functionally impairing headaches.
However, Foster still fails to point to objective evidence showing how those headaches impaired
her functionality. It seems that Foster mistakenly conflates her subjective belief that the headaches
were functionally impairing with objective evidence showing the precise manner in which her
functionality was impaired. Therefore, the Court did not err in finding that substantial evidence
supported Principal’s determination. Accordingly, Foster has not shown that reconsideration is
necessary to correct a manifest error of law or fact.
Third, Foster asserts that the Court erred in finding that Foster suffers from a mental illness
as opposed to a headache disorder. This argument misconstrues the Court’s opinion. The Court
found that Principal did not abuse its discretion in concluding that Foster was not disabled under
the Group Policy.124 As such, even assuming that the mental health limitation, which provides that
disabilities caused by a “Mental Health Condition” are subject to a limited pay period of 24

123

Rec. Doc. 37 at 55.

124

Id. at 58.

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months, applied, Foster was not entitled to benefits because she was not disabled.125 Therefore,
Foster has not shown that reconsideration is necessary to correct a manifest error of law or fact.
Finally, Foster’s argument that the Court erred in determining that Principal did not abuse
its discretion in denying Foster’s LWOP benefits was thoroughly addressed in the Court’s prior
order.126 The Court determined that Principal did not abuse its discretion in concluding that Foster
was not unable to perform the material duties of her own occupation as a healthcare attorney.127
Therefore, it follows that Foster was not unable to perform the material duties of any occupation.128
Furthermore, Foster admitted that she ceased working full-time on March 8, 2013.129 The group
life insurance policy defines a “member” as a person “who is a full-time employee” and “who
regularly works at least 30 hours per week.”130 Foster’s arguments on these issues amount to mere
disagreement with the Court’s conclusions, and she has not identified any manifest error of law or
fact that warrant reconsideration.
V. Conclusion
For the reasons stated above, Foster has not shown that reconsideration is warranted for
consideration of newly submitted evidence. Furthermore, Foster has not identified any manifest
error of law or fact that warrant reconsideration. Accordingly,

125
126

Id.
Id. at 58–63.

127

Id. at 61.

128

Id.

129

Id. at 62.

130

Id.

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IT IS HEREBY ORDERED that the “Motion for Reconsideration/New Trial/and/or to
Amend or Alter Judgment Under Rule 59”131 is DENIED.
NEW ORLEANS, LOUISIANA, this ______ day of March, 2018.
19th

______________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

131

Rec. Doc. 39.

22