Brugler v. UNUM Group et al

Filing 111

MEMORANDUM OPINION AND ORDER - IT IS HEREBY ORDERED that Defendants' motion for partial summary judgment, ECF No. 31, is DENIED with respect to Dr. Brugler's bad faith claim. Defendants' motion in limine, ECF No. 64, is DENIED. Defenda nts' motion in limine, ECF No. 65, is DENIED. Defendants' motion in limine, ECF No. 66, is GRANTED IN PART and DENIED IN PART. Defendants' motion in limine, ECF No. 67, is DENIED. Plaintiff's motion in limine, ECF No. 74, is DENIE D. Defendants are not precluded from bringing Dr. Brugler's credibility into question at trial. Defendants' motion for continuance made during the 10/3/2019 telephonic conference is DENIED. Defendants' 108 Motion for Reconsideration is DENIED. Signed by Honorable Matthew W. Brann on 10/4/2019. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DR. ROBERT BRUGLER,

No. 4:15-CV-01031

Plaintiff,

(Judge Brann)

v.
UNUM GROUP and PROVIDENT
LIFE AND ACCIDENT INSURANCE
COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
OCTOBER 4, 2019
I.

BACKGROUND
This Court writes to explain this case’s progression and clarify the issues

that the parties will test at trial, which is scheduled to begin this Monday, October
7, 2019.
On May 27, 2015, Plaintiff Dr. Robert Brugler initiated this action, claiming
in his complaint that Defendants Unum Group and Provident Life and Accident
Insurance Company breached the terms of Dr. Brugler’s long-term disability
insurance policy. He also claimed that Defendants had acted in bad faith towards
him when handling his policy.1

1

See ECF No. 1. Dr. Brugler’s bad faith claim was pursuant to 42 Pa.C.S. § 8371.

After discovery and an unsuccessful mediation with the Honorable Thomas
I. Vanaskie, then United States Circuit Judge for the United States Court of
Appeals for the Third Circuit,2 on November 2, 2018, this Court granted
Defendants’ motion for partial summary judgment and dismissed Dr. Brugler’s bad
faith claim.3 My decision to dismiss the bad faith claim hinged on the fact that
Defendants’ independent medical examiner, Dr. Michael Schaffer, had
“conclude[d] that Dr. Brugler was no longer disabled under the policy.”4
After my decision at summary judgment, on November 28, 2018, I referred
the case to Chief Magistrate Judge Susan E. Schwab for settlement proceedings.5
This second attempt at resolution was also unsuccessful,6 and on March 11, 2019,
the case returned to my docket.7 After a status conference held on April 5, 2019,
the Court was prepared to immediately set a trial date. Indeed, the Court followed
up with the parties’ counsel on multiple, regular occasions, seeking to ascertain
what dates would be appropriate for trial. But the parties’ counsel claimed various
impediments and obstacles, which delayed the scheduling of trial by nearly a

2

See ECF Nos. 22-24.

3

See ECF No. 43. This decision also dismissed Dr. Brugler’s declaratory judgment and unfair
trade practices claims.

4

ECF No. 43 at 13; see also id. at 15 (“After Dr. Schaffer concluded that Dr. Brugler’s
disability claim was not medically supported, Defendants terminated Dr. Brugler’s disability
benefits.”).

5

See ECF No. 50.

6

See ECF No. 56.

7

See ECF No. 57.
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month. This Court eventually issued a Scheduling Order on May 1, 2019. This
Order fixed a July 29, 2019 deadline for motions in limine and pre-trial
memoranda, scheduled the final pre-trial conference for September 23, 2019, and
fixed the date certain for jury selection and the start of trial as October 7, 2019.8
On July 16, 2019, Defendants moved for a ten-day extension for motions in
limine;9 I denied this motion.10
On July 29, 2019, the parties duly submitted their motions in limine.11 Dr.
Brugler moved in limine to exclude Dr. Schaffer’s testimony—including his expert
opinion that Dr. Brugler was no longer disabled.12 Defendants moved in limine to
preclude Dr. Brugler from testifying as to Defendants’ intentions in handling his
claims and as to his Internet research into Defendants’ history of claims handling.13
Defendants also moved in limine to preclude Dr. Brugler from challenging the
reasonableness of the stereoacuity testing (in this case, the Titmus test) that Dr.
Schaffer performed on Dr. Brugler during the course of his independent medical
examination.14

8

ECF No. 61.

9

ECF No. 62.

10

ECF No. 63.

11

I have detailed the scope and specifics of the parties’ five motions in limine at ECF Nos. 93
and 100. Only three of the five motions are relevant to this memorandum and order.

12

See ECF No. 74.

13

See ECF No. 66.

14

See ECF No. 67.
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On September 17, 2019, I granted Defendants’ motions in limine, and denied
Plaintiff’s motion in limine in part and granted it in part.15 In an accompanying
Memorandum, I explained that I was granting Defendants’ motions to preclude the
above subjects of Dr. Brugler’s testimony because these subjects were not relevant
to the sole breach of contract claim before the Court at the time, and including
these subjects would prove unduly prejudicial to Defendants.16
I also explained that I needed more development of the factual record in
order to fully resolve Dr. Brugler’s motion to exclude Dr. Schaffer’s testimony. I
was able to conclude that Dr. Schaffer could testify about the condition of Dr.
Brugler’s eye and Dr. Brugler’s visual ability,17 but I needed more information on
Dr. Schaffer’s qualifications and the reliability of his methods to determine
whether Dr. Schaffer could testify about whether Dr. Brugler could practice
dentistry.18 The same day the Court issued its Memorandum and Order, it, sua
sponte, reached out to the parties’ counsel to schedule a conference call to discuss
the need for more information from Dr. Schaffer.
That conference call occurred two days later, on September 19, 2019. The
Court explained that it had significantly less information about Dr. Schaffer than
about the other experts about which it issued its motion in limine rulings, and

15

See ECF No. 94.

16

See ECF No. 93 at 40-43.

17

See ECF No. 93 at 44-47.

18

See ECF No. 93 at 49-50.
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proposed a Daubert hearing to elicit this information and conduct a fulsome
analysis into Dr. Schaffer’s qualifications and into the reliability of his methods.
The parties stated their intention to resolve this issue without a Daubert hearing.
At the pre-trial conference held four days later on September 23, 2019,
defense counsel stated that he had reviewed Dr. Schaffer’s deposition testimony.
Per defense counsel, Dr. Schaffer had the same basic and limited understanding of
Dr. Brugler’s duties as a dentist as did the other three key expert witnesses whose
testimony was at issue.19 I confirmed with defense counsel that I would need a
statement in writing confirming Dr. Schaffer’s understanding of Dr. Brugler’s
dentistry duties. I also reiterated the Court’s willingness to conduct a Daubert
hearing, and presented potential dates for the hearing (understanding that the
hearing would, of course, necessarily fall close to trial).
Three days later, on September 26, 2019, defense counsel memorialized his
pre-trial conference statements in a letter to the Court.20 The Court analyzed this
new information about Dr. Schaffer’s qualifications, and concluded in an Order of
that same date that Dr. Schaffer was not qualified to testify about whether Dr.
Brugler could practice dentistry.21
On October 2, 2019, Dr. Brugler’s counsel wrote to assert that Dr. Brugler’s
bad faith claim should be reinstated, and that the Court should preclude Defendants

19

Dr. Steven Marks, Dr. Thomas Vander, and Dr. Joseph Friberg.

20

See ECF No. 99.

21

See ECF No. 100.
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from attacking Dr. Brugler’s credibility.22 Yesterday, October 3, 2019, in another
telephonic conference with counsel for the parties, I stated that based on Dr.
Schaffer’s lack of qualifications, I would be allowing Dr. Brugler’s bad faith claim
to proceed and would be allowing Defendants to attack Dr. Brugler’s credibility. I
explained that this formal Memorandum and Order would follow to memorialize
my ruling. Defendants’ counsel objected and orally moved for a continuance,
claiming that Defendants needed additional time before trial to prepare to defend
against the bad faith claim. Defendants then followed up with a motion for
reconsideration of my decision to reinstate Dr. Brugler’s bad faith claim.23
I have reviewed Defendants’ motion for reconsideration, and I find it well
constructed. I appreciate its arguments. But I do not find it persuasive.
II.

DISCUSSION
If Dr. Schaffer cannot testify about Dr. Brugler’s ability to practice dentistry,

then, by extension, Dr. Schaffer cannot testify about whether Dr. Brugler is
disabled under the terms of his policy.24 Given that Dr. Schaffer can no longer
give his expert opinion as an independent medical examiner that Dr. Brugler was
no longer disabled, the evidence in the record does not establish as a matter of law

22

See ECF No. 102.

23

ECF No. 108.

24

The policy defines “totally disabled” as “due to Injuries or Sickness you are not able to
perform the substantial and material duties of Your Occupation.” ECF No. 85 Ex. 1 at OC-2.
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that Defendants “had a reasonable basis to deny [Dr. Brugler’s] claim.”25 Thus,
this Court now modifies the portion of its summary judgment decision that
dismissed Dr. Brugler’s bad faith claim. Dr. Brugler can proceed with his bad faith
claim at trial.
Dr. Brugler can also now testify about his personal belief about Defendants’
intentions in handling his claim, about the reasonableness of Defendants’ request
to have Dr. Brugler undergo the Titmus test, and about the reasonableness of Dr.
Schaffer’s performance of the Titmus test. All three topics are clearly relevant to
Dr. Brugler’s bad faith claim, and their inclusion would not be unduly prejudicial.
Fed R. Evid. 401; Fed. R. Evid. 403.

But Dr. Brugler may not testify about his

Internet research into Defendants’ history of claim handling. This would present a
danger of “confusing the issues [and] misleading the jury” in this case, given
Unum’s recent reforms to its claims handling internal procedures.26 The Court
now modifies its September 17, 2019 Order on Defendants’ motions in limine; this
is reflected in the below Order.
If Dr. Brugler can attempt to advance this claim, Defendants are free to bring
Dr. Brugler’s credibility into question. Dr. Brugler’s credibility is of obvious
relevance to the questions of (1) whether Defendants “had a reasonable basis to

25

See ECF No. 43 at 13; Amica Mut. Ins. Co. v. Fogel, 656 F.3d 167, 179 (3d Cir. 2011)
(explaining that an insurer defeats a plaintiff’s bad faith claim by showing that it had a
reasonable basis to deny the claim).

26

See ECF No. 93 at 42.
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deny [Dr. Brugler’s] claim,”27 and (2) whether Defendants acted in bad faith
towards Dr. Brugler in their handling of Dr. Brugler’s claim. If Defendants’ bad
faith is an issue in this case (and it now is), then Dr. Brugler’s credibility can
accompany by association. This Court will not preclude Defendants from bringing
Dr. Brugler’s credibility into question during trial.
And, in turn, Defendants can introduce—for the limited purpose of
defending against Dr. Brugler’s bad faith claim—Dr. Friberg and Dr. Schaffer’s
opinions that Dr. Brugler could practice dentistry. These conclusions are clearly
relevant to whether Defendants had a reasonable basis to deny Dr. Brugler’s claim.
The conclusions of Dr. Marks and Dr. Vander that Dr. Brugler could not practice
disability are likewise now admissible for limited purposes—either for Dr. Brugler
to defend against attacks on his credibility, or for Defendants to further support
their defense against Dr. Brugler’s bad faith claim. As the Court ruled on
September 17, 2019 and September 26, 2019, these experts were not qualified to
give these specific opinions. But these opinions are still relevant when considering
what Defendants relied on in processing Dr. Brugler’s disability claim and in
considering Dr. Brugler’s credibility in bringing his disability claim. The Court
now further modifies its September 17, 2019 Order on Defendants’ motions in
limine.28

27

Amica, 656 F.3d at 179.

28

This dissipates the “proverbial ‘Catch-22’” that Defendants note. ECF No. 110 at 15.
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The Court understands full well that this ruling comes with trial fast
approaching, and that this ruling broadens the scope of the issues to be addressed at
trial. But the Court will not grant Defendants’ motion for a continuance. The
Court believes that its September 17, 2019 Memorandum and Order—issued
nearly three weeks before the start of trial—placed Defendants on constructive
notice of the high probability that the Court would reinstate Dr. Brugler’s bad faith
claim. Here’s why.
As stated above, the Court’s November 2, 2018 summary judgment decision
on Dr. Brugler’s bad faith claim depended on Dr. Schaffer’s ability to testify about
Dr. Brugler’s ability to practice dentistry. At summary judgment, Defendants did,
as the Court noted, present “ample, undisputed record evidence that [they], after
conducting a thorough investigation of Dr. Brugler’s claim, had a reasonable basis
to deny his disability claim.” ECF No. 43 at 14. But the evidence that Defendants
presented in support of their decision to deny Dr. Brugler’s claim shows that
Defendants depended on Dr. Schaffer being qualified to provide, and using reliable
methods in the provision of, an opinion on Dr. Brugler’s ability to practice
dentistry. Defendants minimize the importance of this opinion to their
determination.29 It was crucial.
Dr. Judith Cohen, after analyzing updated medical records that Dr. Brugler
had provided, spoke to Dr. Brugler’s attending physician, Dr. Steven Marks. In

29

See ECF No. 110 at 10-13.
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that telephone call, per Dr. Cohen’s notes, Dr. Marks “noted that it would be
reasonable to obtain a second opinion with a pediatric ophthalmologist who could
perform advanced depth perception testing to better quantify Dr. Brugler’s
functional ability.”30 Then Dr. Cohen, in concluding that an independent medical
examination would be necessary, noted that “a neuroophthalmologist or strabismus
specialist would best be able to perform [certain] tests and assess the insured’s
function,” and suggested that this specialist “correlate [test results] with how this
would impact function,” “quantify the insured’s restrictions and/or limitations” and
explain the basis for the insured’s limitations “[or] inability to perform activities
requiring depth perception.”31 As reflected in his report, Dr. Schaffer’s
conclusions included analysis of Dr. Brugler’s “inability to perform nonmicroscopic dental surgery.”32 Janet Swenson, a benefits specialist with Unum,
informed Dr. Brugler’s counsel that Unum would be stopping benefits because
“the information in Dr. Brugler’s claim file indicates he is able to perform the
duties of his occupation as a dentist.”33 Under a heading of “Information That
Supports Our Decision,” Ms. Swenson cited the results of Dr. Schaffer’s
independent medical examination as well as Dr. Schaffer’s analysis of Dr.

30

ECF No. 31-8 at Ex. 8.

31

ECF No. 31-8 at Ex. 10.

32

Id. at Ex. 11.

33

Id. at Ex. 12.
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Brugler’s ability to perform non-microscopic dental surgery.34 Ms. Swenson later
advised Dr. Brugler’s counsel that an additional medical examination performed by
Dr. Joseph Walker did not change Unum’s determination to stop benefits, because
“the additional medical information did not change the opinion of Dr. Schaffer.”
The “opinion of Dr. Schaffer”—the opinion that Dr. Brugler could practice
dentistry—is what drove Defendants’ decision.35
At summary judgment, Dr. Schaffer’s qualifications and reliability were not
in question. Plaintiff’s motion in limine re-focused the Court’s analysis. The
Court’s September 17, 2019 decision then informed the parties that the
admissibility of testimony from Dr. Schaffer on whether Dr. Brugler could practice
dentistry was very much up in the air (with the Court even proactively reaching out
to the parties to make this clear). As Dr. Schaffer was Defendants’ expert witness,
Defendants should have known on September 17, 2019, that, given the analysis in
the Court’s opinion, Dr. Schaffer was not qualified to testify about Dr. Brugler’s
ability to practice dentistry. The fact that the necessary next step to Dr. Schaffer’s
lack of qualification—the resuscitation of Dr. Brugler’s bad faith claim, which had
previously existed for over three years and all through the discovery process—did

34

Id. at Ex. 12.

35

Id. at Ex. 17. The Court understands that “it is the claims handler, not the independent
physician, who makes a claim determination.” ECF No. 110 at 13. But, as explained above,
Defendants, in making their claim determination, relied upon their independent physician,
Dr. Schaffer, and his opinion about whether Dr. Brugler could practice dentistry. Defendants
cite no authority for their claim that the Court’s decision here “is not supported by the law
and is not a practical reality of the insurance industry.” Id.
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not crystallize until today does not save Defendants. “Continuance of a trial is a
matter of discretion with the trial court which will not be disturbed unless a clear
abuse has been shown.” Fontana v. United Bonding Ins. Co., 468 F.2d 168, 16970 (3d Cir. 1972). Denying a motion for continuance is not an abuse of discretion
if a party shows a lack of diligence in preparing their case. See Johnston v. Jones,
178 F.2d 481, 484-85 (3d Cir. 1949).36 Here, Defendants have shown a lack of
diligence in not preparing to defend against Dr. Brugler’s bad faith claim. This
claim had been a live claim for over three years, the parties fully ventilated it in
discovery, and Defendants had nearly three weeks of notice that it would likely be
returning to the playing field.37 This Court denies Defendants’ motion for a
continuance.

36

See also Pfeil v. Rogers, 757 F.2d 850, 856 (7th Cir. 1985) (“When a party fails to secure
discoverable evidence due to his own lack of diligence, it is not an abuse of discretion for the
trial court to refuse to grant a continuance to obtain such information.”); N. Indiana Pub.
Serv. Co. v. Carbon Cty. Coal Co., 799 F.2d 265, 269 (7th Cir. 1986) (“the existence of
changed circumstances to which a party cannot reasonably be expected to adjust without an
extension of time” is a key factor in reversing denial of a continuance); Rogers v. Andrus
Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (listing “the diligence of the party
requesting the continuance” as one factor the Tenth Circuit considers when deciding whether
the denial of a continuance is an abuse of discretion).

37

The Court finds Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d 926, 930-31 (3d
Cir. 1950) to be distinguishable. That was a patent infringement case where the denial of a
continuance presented the defendant from preparing adequate technical experiments during a
period of ill health of the defendant’s key technician. From the Court’s perspective,
defending against Dr. Brugler’s bad faith claim requires much less technical expertise. This
appears to be a garden-variety insurance dispute.
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III.

CONCLUSION
THEREFORE, IT IS HEREBY ORDERED that:
1.

Defendants’ motion for partial summary judgment, ECF No. 31, is
DENIED with respect to Dr. Brugler’s bad faith claim.

2.

Defendants’ motion in limine, ECF No. 64, is DENIED.

3.

Defendants’ motion in limine, ECF No. 65, is DENIED.

4.

Defendants’ motion in limine, ECF No. 66, is GRANTED IN PART
and DENIED IN PART.

5.

Defendants’ motion in limine, ECF No. 67, is DENIED.

6.

Plaintiff’s motion in limine, ECF No. 74, is DENIED.

7.

Defendants are not precluded from bringing Dr. Brugler’s credibility
into question at trial.

8.

Defendants’ motion for continuance made during the October 3, 2019
telephonic conference is DENIED.

9.

Defendants’ motion for reconsideration, ECF No. 108, is DENIED.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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