Free Motion to Strike - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Jeffrey B. Kuykendal (021878) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road 3 Phoenix, Arizona 85016-9225 (602) 530-8407 4 Attorneys for Defendants 5 6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

7 Constance Ann Maynard, an individual, 8
! " # $ % &' ) * # &" # # #

Plaintiff, vs.

NO. CV 04-0525-PHX-RCB DEFENDANTS' MOTION TO STRIKE

9

10 CNA Group Life Assurance Company, an Illinois Corporation; Continental Casualty 11 Company, an Illinois Corporation; Hewitt Associates, L.L.C., an Illinois Limited 12 Liability Company; and Hewitt Long Term Disability Plan, 13 Defendants. 14 15

(% #

Defendants CNA Group Life Assurance Company and Continental Casualty

16 Company (collectively "CNA") and Defendants Hewitt Associates, L.L.C. and Hewitt 17 Long Term Disability Plan (collectively "Hewitt") move to strike (1) the Declaration 18 of Constance Ann Maynard in Support of Opposition to Defendants Motion for 19 Summary Judgment and Supporting Exhibits; (2) Exhibit A to the Declaration of 20 Constance Ann Maynard in Support of Opposition to Defendants' Motion for 21 Summary Judgment and Supporting Exhibits; (3) Exhibits A, M, O, P, Q, R, S, T, U 22 to the Declaration of Stuart H. Sandhaus in Support of Opposition to Defendants'
Case 2:04-cv-00525-RCB Document 92 Filed 10/11/2005 Page 1 of 4

1 Motion for Summary Judgment and Supporting Exhibits; (4) the Declaration of 2 Daniel L. Peterson, M.D. in Support of Opposition to Defendants' Motion for 3 Summary Judgment and Supporting Exhibits; (5) Exhibits A, B, and G to the 4 Declaration of Daniel L. Peterson, M.D. in Support of Opposition to Defendants' 5 Motion for Summary Judgment and Supporting Exhibits; (6) the Declaration of Sheila 6 P. Bastien, Ph.D. in Support of Opposition to Defendants' Motion for Summary 7 Judgment and Supporting Exhibits; (7) Exhibits D, E, G and H of the Declaration of 8 Sheila P. Bastien, Ph.D. in Support of Opposition to Defendants' Motion for 9 Summary Judgment and Supporting Exhibits; (8) Plaintiff's Controverting Statement 10 of Facts in Opposition to Defendants' Motion for Summary Judgment, ¶¶ 7, 40 ­ 50 11 (collectively the "Affidavits, Documents, and Statements of Fact"). 12 All of the Affidavits, Documents and Statements of Fact were produced after,

13 or based upon documents produced after, CNA denied Plaintiff's ERISA appeal. 14 Accordingly, all of the Affidavits, Documents and Statements of Fact were not part of 15 the administrative record. On March 28, 2005, the Court determined that CNA had 16 discretionary authority under the subject ERISA policy and that the proper standard of 17 review is under an abuse of discretion standard. The Court further determined that 18 discovery outside the administrative record was impermissible. See March 28, 2005 19 Order. 20 It is well established that under an abuse of discretion standard the scope of

21 review by the court is limited to the administrative record. The court evaluates "the 22 reasonableness of an administrative determination in light of the record compiled Case 2:04-cv-00525-RCB Document 92 -2Filed 10/11/2005 Page 2 of 4

1 before the plan fiduciary." See, e.g., Kearney v. Standard Insurance Co., 175 F.3d
th 2 1084, 1090-1091 (9 Cir. 1999); McKenzie v. General Telephone Company of th 3 California, 41 F.3d 1310, 1316 (9 Cir. 1994). The testimony of experts is prohibited

4 because their testimony was not before the plan administrator at the time the 5 administrator made its determination. See Taft v. The Equitable Life Assurance
th 6 Society, 9 F.3d 1469, 1472 (9 Cir. 1993) ("[p]ermitting a district court to examine

7 evidence outside the administrative record would open the door to the anomalous 8 conclusion that a plan administrator abused its discretion by failing to consider 9 evidence not before it."); Berry v. Ciba-Geigy Corporation, 761 F.2d 1003, 1007
th 10 (4 Cir. 1985). Because the Affidavits, Documents and Statements of Fact are not

11 part of the administrative record, or are based upon documents that are not part of the 12 administrative record, the Court cannot evaluate them in light of CNA's 13 administrative determination. Accordingly, CNA respectfully requests that the Court 14 strike the Affidavits, Documents, and Statements of Fact. 15 16 17 18 19 20 21 22
Case 2:04-cv-00525-RCB Document 92 -3Filed 10/11/2005 Page 3 of 4

RESPECTFULLY SUBMITTED this 11th day of October, 2005. GALLAGHER & KENNEDY, P.A.

By/s/ Jeffrey B. Kuykendal Jay A. Zweig Jeffrey B. Kuykendal 2575 E. Camelback Road Phoenix, Arizona 85016-9225 Attorneys for Defendants

th 1 Electronically filed this 11 day of October, 2005, with electronic copies to: 2 David F. Gomez, Esq. Michael J. Petitti, Jr., Esq. 3 GOMEZ & PETITTI, P.C. 4 2525 E. Camelback, Suite 860 Phoenix, Arizona 85016 Co-Counsel for Plaintiff 5 th 6 COPY of the foregoing mailed this 11 day of October, 2005, to: 7 Stuart H. Sandhaus, Esq. 8 STUART H. SANDHAUS, A.P.C. Los Rios Historic District 9 31901 Los Rios Street San Juan Capistrano, California 92675 10 Co-Counsel for Plaintiff

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Case 2:04-cv-00525-RCB Document 92 -4Filed 10/11/2005 Page 4 of 4
1296015/130-2669

/s/ Jan Vigorito