D.T. v NECA/IBEW Family Medical Care Plan et al

Filing 173

Court's Rulings on Defendants' Objections to Plaintiff's Deposition Designations (Dkt. # 160 )(MW)

D.T. v. NECA/IBEW Family Medical Care Plan
C17-0004 RAJ
Court’s Rulings on Defendants’ Objections to Plaintiff’s Deposition Designations (Dkt. # 160)
As an initial matter, Defendants seek to bar Plaintiffs from presenting all Plan witnesses using their prior deposition
testimony. Dkt. # 160 at 1. Defendants note that they have made arrangements for all of the Plan witnesses to be present at
trial and it is prejudicial to Defendants to allow Plaintiff to refer only to the deposition transcripts because it deprives
Defendants of the opportunity to cross-examine these witnesses based on their deposition testimony. Id.
Lisa Trunzo and Matt Plachta are the Plan’s 30(b)(6) witnesses. Dkt. # 162. Under Fed. R. Civ. P. 32(a)(3), “[a]n
adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer,
director, managing agent, or designee under Rule 30(b)(6) . . . .” Therefore, with respect to Ms. Trunzo and Mr. Plachta’s
deposition transcripts, Defendants’ objection is OVERRULED.
Plaintiff also argues that the personal depositions of Vicki Burrows, Larry Bradley, and Jeri Hill should be admitted
because they are “managing agents” of the Plan under Rule 32. See Fed. R. Civ. P. 32(a)(3). The Court is unconvinced.
This is a case involving a self-insured health plan, administered by a Board of Trustees. Dkt. # 11-2. As the parties have
repeatedly articulated, only the Trustees have the capacity to construe the terms of the Plan. See Dkt. ## 77, 100. Here,
none of the deponents are Trustees of the Plan. Accordingly, the Court is unable to conclude that the witnesses have the
authority to act on behalf of the Plan or answer for it. Defendants’ objection is SUSTAINED. Plaintiff is free to call these
witnesses to testify and use their prior deposition testimony as otherwise permissible under the federal rules.

1

Jeri Hill
PAGE / LINE
NO.

NATURE OF OBJECTION

RESPONSE

COURT’S RULING

49:5-9

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of line 9
through line 13 to complete witness’s
response.

Defendants provided these objections on
January 2, 2020. They failed to timely
object pursuant to LCR 16(i) and LCR
32 (“the failure to designate an objection
shall constitute waiver.”). Plaintiff
nonetheless does not object to
defendants’ request to include lines 913.

SUSTAINED. As
stipulated, Plaintiff will
include p. 49 lines 913.

50:4-12

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of line 12
through line 14 to complete witness’s
response.

Defendants provided these objections on
January 2, 2020. They failed to timely
object pursuant to LCR 16(i) and LCR
32 (“the failure to designate an objection
shall constitute waiver.”). Plaintiff
nonetheless does not object to
defendants’ request to include lines 1214.

SUSTAINED. As
stipulated, Plaintiff will
include p. 50 lines 1214.

50:15-21

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of page 50,
line 21 through page 51, line 1 to
complete witness’s response.

Defendants provided these objections on
January 2, 2020. They failed to timely
object pursuant to LCR 16(i) and LCR
32 (“the failure to designate an objection
shall constitute waiver.”). Plaintiff
nonetheless does not object to
defendants’ request to include
page 50, line 21 through page 51, line 1

SUSTAINED. As
stipulated, Plaintiff will
include page 50, line
21 through page 51,
line 1

2

Vicki Burrows
PAGE / LINE
NO.

NATURE OF OBJECTION

RESPONSE

COURT’S RULING

13:13-14

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of page 13,
line 14 through line 16 to complete
witness’s response.

Plaintiff does not object to defendants’
request to include page 13 lines 14-16.

SUSTAINED. As
stipulated, Plaintiff will
include page 13 lines
14-16.

18:16-20

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of page 18,
line 20 through line 21 to complete
witness’s response.

Plaintiff does not object to defendants’
request to include page 18 lines 20-21.

SUSTAINED. As
stipulated, Plaintiff will
include page 18 lines
20-21.

19:12-15

FRE 106. Optional completeness.
Plaintiff designated only a portion of
witness’s response. Defendants move
to include the remainder of page 19,
line 15 through line 16 to complete
witness’s response.

Plaintiff does not object to defendants’
request to include page 19, lines 15-16.

SUSTAINED. As
stipulated, Plaintiff will
include page 19, lines
15-16.

3

33:21-25

FRE 106. Optional completeness.
Plaintiff did not designate witness’s
complete answer to question.
Defendants move to include page 34,
line 1 which contains witness’s
complete answer to question
presented.

Plaintiff does not object to defendants’
request to include page 34, line 1.

SUSTAINED. As
stipulated, Plaintiff will
include page 34, line 1.

34:10-37:4;

FRE 401, 403. Relevance. This
testimony is regarding the BCBSGa
provider manual, a document which is
not relevant to this litigation. This
document was never provided to the
Plan by BCBSGa and how BCBSGa
instructs its providers is not relevant
to any claims that the Defendants in
this case violated the Parity Act.
Moreover, these questions require the
witness to speculate regarding the
meaning of this document which the
witness testified she has never seen.
Moreover, the authenticity of the
document has not been authenticated
by any witness.

Defendants did not object during the
deposition and have waived their
objection now. Regarding pp. 34:1037:4, Plaintiff is entitled to question Ms.
Burrows about the accuracy of the
statements she made in her declaration
that was filed with the Court related to
the Anthem/BCBSGa provider manual.
The testimony by Ms. Burrows here is
about her knowledge or lack thereof of
the statements included in her
declaration. Since this will be a bench
trial, the Court may properly weigh the
relevance of the evidence at trial.
Plaintiff is willing to withdraw the
marking for 39:15-21 and 40:2-13.

OVERRULED. As
stipulated, Plaintiff will
withdraw the marking
for 39:15-21 and 40:213.

FRE 401, 403. Relevance. This
testimony is regarding the BCBSGa
provider manual, a document which is
not relevant to this litigation. This
document was never provided to the

Since this will be a bench trial, the Court OVERRULED
may properly weigh the relevance of the
evidence at trial. Ms. Burrows testimony
is not about the specific BCBSGA
manual but whether if Anthem provider

39:15-21;
40:2-13

41:11-16
42:5-21

4

Plan by BCBSGa and how BCBSGa
instructs its providers is not relevant
to any claims that the Defendants in
this case violated the Parity Act.
Moreover, these questions require the
witness to speculate regarding the
meaning of this document which the
witness testified she has never seen.
Moreover, the authenticity of the
document has not be authenticated by
any witness.
44:6-18

manual directed providers to list every
diagnosis for which treatment is
received, whether that is consistent with
seeing multiple diagnoses on the claim
form. It is highly relevant and explains
why there are multiple diagnoses on a
single claim form.

FRE 401, 403. Relevance. This
testimony is regarding the BCBSGa
provider manual, a document which is
not relevant to this litigation. This
document was never provided to the
Plan by BCBSGa and how BCBSGa
instructs its providers is not relevant
to any claims that the Defendants in
this case violated the Parity Act.
Moreover, these questions require the
witness to speculate regarding the
meaning of this document which the
witness testified she has never seen.
Moreover, the authenticity of the
document has not be authenticated by
any witness.

Defendants failed to object during the
deposition and so have waived their
objection now to the testimony at p.
44:6-10. This testimony is highly
relevant, since Defendants argue that
they do not “cover” ASD and
developmental delay conditions, even
when they pay for services that treat
those conditions. Since this will be a
bench trial, the Court may properly
weigh the relevance of the evidence at
trial.

OVERRULED. As
stipulated, Plaintiff will
withdraw p. 44:11-18

Plaintiff is willing to withdraw the
marking of pp. 44:11-18.

5

45:9-12

Plaintiff does not object to the additional SUSTAINED. As
FRE 106. Optional completeness.
stipulated, Plaintiff will
Plaintiff did not designate witness’s
designation of p. 45:12-14.
include p. 45:12-14.
complete answer to question.
Defendants move to include page 45,
line 12 through 14 which contains
witness’s complete answer to question
presented.

49:2-9

Overly broad as to timeframe. FRE
106. Optional completeness. Plaintiff
did not designate witness’s complete
answer to question. Defendants move
to include page 49, line 7 through line
9, which contains witness’s complete
answer to question presented.

Defendants did not state their objection
with sufficient specificity to allow
Plaintiff’s counsel to determine the basis
for the objection. To the extent this
testimony is overbroad, Ms. Burrows
can correct it during her direct testimony
with defendants.
Plaintiff has no objection to including p.
49:7-9 in the designation.

OVERRULED as to
overbroad objection.
SUSTAINED as to
optional completeness
objection. As
stipulated, Plaintiff will
include p. 49:7-9 in the
designation.

54:9-11

Plaintiff has no objection to included p.
FRE 106. Optional completeness.
54:11-12 in the designation.
Plaintiff did not designate witness’s
complete answer to question.
Defendants move to include page 54,
line 11 through 12 which contains
witness’s complete answer to question
presented.

SUSTAINED. As
stipulated, Plaintiff will
include p. 54:11-12.

59:19-60:6

FRE 401, 403. Relevance. This
testimony is regarding the Plan’s
coverage of ADHD. The Plan’s
coverage of other conditions not

OVERRULED

This testimony is highly relevant and
shows that the plan’s administration of
the Developmental Delay Exclusion is
highly arbitrary and capricious.

6

subject to the Developmental Delay
Exclusion is not relevant and
prejudicial.

Defendants have at times covered and
excluded ADHD as a “developmental
delay” exclusion. This goes to the heart
of defendants’ liability under the Parity
Act and the Plan language. Defendants
offer no explanation as to why the
testimony is “prejudicial.” Since this
will be a bench trial, the Court may
properly weigh the relevance of the
evidence at trial and disregard any
testimony deemed “prejudicial.”

68:9-13

Plaintiff has no objection to included p.
FRE 106. Optional completeness.
68:13-16 in the designation
Plaintiff did not designate witness’s
complete answer to question.
Defendants move to include page 68,
lines 13 through 16 which contains
witness’s complete answer to question
presented.

102:9

Sidebar. Testimony by counsel.

Plaintiff withdraws the designation of p.
102:9.

SUSTAINED. As
stipulated, Plaintiff will
include p. 68:13-16.

WITHDRAWN

7

Dr. Richard Fuchs
PAGE / LINE
NO.

NATURE OF OBJECTION

RESPONSE

COURT’S RULING

55:5-13

Calls for speculation.

Anthem’s Rule 30(b)(6) witness on how
the Developmental Delay Exclusion is
administered has knowledge was
expected to have knowledge as to how
Anthem interprets claim forms with
multiple diagnostic codes, including the
instructions that Anthem gives to
providers of developmental delay
services as to how to submit claims for
these services. It is relevant and not
speculation.

OVERRULED

107-108, ex. 9

Relevance. This deposition testimony
and exhibit discusses Anthem’s
UM/CM guidelines related to ABA
therapy. This guideline is not offered
by the Plan and is not required to be
offered by the Plan as written. The
fact that Anthem provides this
guideline has no relevance to this
litigation.

Whether or not ABA therapy can be
medically necessary is highly relevant to
the injunctive relief sought in this case.
Should the Class prevail on liability,
they will ask the Court to order
permanent injunctive relief. Defendants
may attempt to argue at that point that
they have not determined whether ABA
can be medically necessary; however,
there is substantial evidence that the
therapy is medically necessary,
including the evidence in Anthem’s
clinical policies. Plaintiff will provide

OVERRULED

8

evidence that the Plan relies upon
Anthem’s clinical judgments for
determining whether a service is
medically necessary. Since Anthem has
concluded that ABA can be medically
necessary, Defendants cannot claim, at
the relief stage of litigation, that such
coverage is never medically necessary.
Although defendants appear to have
conceded this point repeatedly, See Dkt.
No. 115, p. 10:9-11, they will not
stipulate to it.

9