Flowers v. Hartford Life and Accident Insurance Company

Filing 25

ORDER denying 19 Letter Motion for Discovery. Therefore, IT IS HEREBY ORDERED that Plaintiff's request for limited discovery beyond the administrative record is DENIED. IT IS FURTHER ORDERED that the status conference scheduled for Novembe r 23, 2021 at 3:30 PM is ADJOURNED to January 25, 2022 at 10:30 AM. The parties shall file a letter on or before January 17, 2022 advising the Court of the status (but not the substance) of settlement discussions. If the parties intend to proceed to motion practice, they should also provide a briefing schedule in that letter. SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 11/18/2021) (tg)

Case 1:21-cv-05388-MKV Document 25 Filed 11/18/21 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KERRI FLOWERS,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 11/18/2021

Plaintiff,
-againstHARTFORD LIFE & ACCIDENT INSURANCE CO.,

1:21-cv-5388-MKV
ORDER ON DISCOVERY
DISPUTE

Defendant.
MARY KAY VYSKOCIL, United States District Judge:
Pursuant to the Court’s Order dated October 19, 2021, Plaintiff filed a letter seeking
limited discovery beyond the administrative record in this Employment Retirement Income
Security Act (“ERISA”) case. [ECF No. 19]. Plaintiff seeks limited discovery into the financial
relationship between Defendant and Dr. Jeffrey Liva, a physician consultant who conducted
Plaintiff’s independent medical examination. Plaintiff contends that there were irregularities in
Dr. Liva’s examination of Plaintiff as evidenced by the administrative record. She contends that
Dr. Liva’s medical assistant conducted much of the exam, including a mini-mental status exam
and that during the exam, the medical assistant fed the correct answers to Plaintiff and
disregarded Plaintiff’s incorrect answers, which led to an incorrect health assessment. Plaintiff
contends that after she reported her concerns about the examination to Defendant, Defendant
assured her that it would investigate the issue. However, according to Plaintiff, there apparently
is no evidence that Defendant conducted an investigation. Defendant instead adopted Dr. Liva’s
opinions completely and continued the review of Plaintiff’s claim.
Where, as here, an ERISA plan grants discretionary authority to a claim fiduciary to
interpret the terms of the plan and determine eligibility for benefits, a district court’s review of
the administrator’s adverse benefit determination under ERISA§ 502(a)(1)(B) must apply the

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arbitrary and capricious standard of review. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115
(2008). “[T]he presumption is that review is limited to the record in front of the claims
administrator unless the district court finds good cause to consider additional evidence.” Muller
v. First Unum Life Ins. Co., 341 F.3d 119, 125 (2d Cir. 2003). This Court has held that a
plaintiff may be permitted to conduct limited extra-record discovery where there is “a reasonable
chance that the requested discovery will satisfy the good cause requirement.” Smith v. First
Unum Life Ins., No. 19 CIV. 00298 (NSR), 2020 WL 6281451, at *4–5 (S.D.N.Y. Oct. 21, 2020)
(quoting Anderson v. Sotheby's Inc. Severance Plan, No. 04 CIV.8180 SAS DFE, 2005 WL
6567123, at *7 (S.D.N.Y. May 13, 2005)) (collecting cases); Capretta v. Prudential Ins. Co. of
Am., No. 16 Civ. 1929 (DAB), 2017 WL 4012058, at *6 (S.D.N.Y. Aug. 28, 2017). However, “a
plaintiff may not rely upon a bare allegation of the existence of a conflict of interest,” but must
demonstrate “some factual support for the position that the conflict of interest influenced a claim
denial determination within the administrative record.” Smith, 2020 WL 6281451, at *6.
Plaintiff fails to show a reasonable chance that the requested discovery will satisfy the
good cause requirement. Plaintiff fails to show any evidence of a financial relationship between
Defendant and Dr. Liva. Indeed, Dr. Liva was not assigned to conduct Plaintiff’s medical
examination directly, but was instead retained by Exam Coordinators Network, which itself had
been retained by Defendant as a third-party vendor to arrange Plaintiff’s medical examination.
[ECF No. 19-3].
Plaintiff’s own letter also belies any argument that extra-record discovery is necessary in
this case. In support of her claim that Dr. Liva’s examination was improper, she cites to the
administrative record, which already has been produced. ([ECF No. 19] (“The evidence in the
ERISA administrative record suggests that Dr. Liva conducted his exam improperly”). If the
administrative record already establishes that Plaintiff did not receive a full and fair review of
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her claim, as she contends, there is no need for further discovery on this issue. The issue of
whether Defendant erred in relying on Dr. Liva’s report to support its adverse benefit
determination goes to the merits of whether Defendant’s determination was arbitrary and
capricious and does not justify extra-record discovery. See Anderson v. Sotheby's Inc. Severance
Plan, No. 04 CIV.8180 SAS DFE, 2005 WL 6567123, at *5 (S.D.N.Y. May 13, 2005) (“[A]
plaintiff cannot satisfy the good cause requirement simply by arguing that the plan administrator
acted in clear error. Otherwise, every ERISA case would include documents outside the
record.”).
Plaintiff also cites to a letter from another ERISA plaintiffs’ attorney, Joel D. Zelkowitz,
concerning an unrelated case in which Mr. Zelkowitz’s client was examined by Dr. Liva. [See
ECF No. 19-6]. However, this letter is not persuasive. In that letter, Mr. Zelkowitz reports that
he accompanied his own client to an exam performed by Dr. Liva in February 2020, during
which he observed the same irregularities in his examination that Plaintiff now reports. Passing
the fact that this letter is hearsay, it also only undermines the need for extra-record discovery
here. Reportedly, the claim of Mr. Zelkowitz’s client was eventually approved on appeal after he
submitted a detailed statement explaining his observations and concerns about Dr. Liva’s
conduct during the exam. [See ECF No. 19]. As such, this letter only belies Plaintiff’s assertion
that extra-record discovery is necessary in this case.
Plaintiff also cites to Feltington v. Hartford Life Insurance Company, 2021 WL 2474213
(E.D.N.Y. June 17, 2021) in support of her argument, but that case in inapposite. In Feltington,
the plaintiff alleged that the doctor at issue was employed by a third-party vendor that “derived
nearly 75% of its revenue from” the Defendant insurance company. Id. at *15. The Court held
that, in light of the specific allegations regarding this financial relationship, there was “a
reasonable chance that permitting requested discovery . . . may lead to evidence that will satisfy
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the good cause requirement.” Id. at *16. Plaintiff has not made any similar allegations.
Conversely, the Court in that same case did not permit extra-record discovery in relation to
another independent physician associate where Plaintiff failed to allege a financial influence
between the physician and the Defendant insurance company. Id. at *18.
Therefore, IT IS HEREBY ORDERED that Plaintiff’s request for limited discovery
beyond the administrative record is DENIED.
IT IS FURTHER ORDERED that the status conference scheduled for November 23,
2021 at 3:30 PM is ADJOURNED to January 25, 2022 at 10:30 AM.
The parties shall file a letter on or before January 17, 2022 advising the Court of the
status (but not the substance) of settlement discussions. If the parties intend to proceed to motion
practice, they should also provide a briefing schedule in that letter.

SO ORDERED.
_________________________________
MARY KAY VYSKOCIL
United States District Judge

Date: November 18, 2021
New York, NY

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