Free Response to Motion - District Court of Arizona - Arizona

1 Joseph E. Lambert (013923)
JOSEPH E. LAMBERT, P.C.
2 Mesa Commerce Center
1930 S. Alma School Rd. Ste. A—1 15
3 Mesa, Arizona 85210
(480) 755-0772
4 Attorney for Defendants
5
6 IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF ARIZONA
7
8 Carol Ann Wallace,
No. CV-04-0492 PHX RCB
9 Plaintiff,
10 vs. DEFENDANTS’ RESPONSE TO
MOTION TO SUBMIT A REPLY TO
ll Intel Corporation as Administrator, Intel DEFENDANT’S RESPONSE TO
Corporation Long Term Disability Benefit PLAINTIFF’S CROSS-MOTION FOR
12 Plan and Matrix Absence Management, SUMMARY JUDGMENT
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15 ln its Order of June 27, 2005, the Court extended the time for Plaintiff to file a cross-
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gg: Q E 16 motion for summary judgment from May 31, 2005 (see Docket No. 20 at 4) on the
17 "condition that no reply to any response to this motion is permitted, without further order of
18 the court." Docket No. 46. Plaintiff now seeks leave to file such a reply.
19 The Court should deny P1aintiff’s motion to submit a reply because the reply to be
20 filed misleads the Court as to the two declarations it seeks to exclude and raises issues that
21 should have been dealt with in Plaintiffs Memorandum of Law in Support of Her Cross-
22 Motion for Summary Judgment and Response to Defendant’s Motion for Summary
23 Judgment (Docket No. 45).
24 Plaintiff correctly observes that the declarations of Dr. Don Fisher and Dr. Barry
25 Hendin have more to do with the abuse of discretion issue briefed in Defendants’ Motion for
26 Summary Judgment at 10-14 and Defendants’ Reply in Support of Motion for Summary
27 Judgment and Response to Plaintiff’ s Cross—Moti0n for Summary Judgment ("Defendant’s
28 Reply/Response") at 12-17, than the standard of review issue briefed in Defendants’
Case 2:O4—cv—OO492-RCB Document 51 Filed O8/O2/2005 Page 1 of 3

1 Reply/Response at 4-10. See Reply to Defendant’s Response to Plaintiffs Cross-Motion for
2 Summary Judgment (Proposed Reply") at 1. Plaintiff incorrectly asserts, however, that the
3 opinions of Drs. Fisher and Hendin "only become relevant if the Court performs a de novo
( 4 review and considers evidence outside of the administrative record." Plaintiff also falsely
5 asserts that: "Defendants, anticipating that the Court would conduct a de novo review, asks
6 (sic) that the Court consider the opinions of’ the two physicians. Plaintiffs Proposed Reply
7 at 1-2. Defendants plainly do not anticipate a de n0v0 review.
8 As straightforwardly discussed in Defendants’ Reply/Response, the opinions of Drs.
9 Fisher and Hendin are relevant, regardless of the standard of review, because they speak
10 directly to the content of the medical records before the Plan decision-makers at the time the
11 decisions were made and the extent to which those records did or did not manifest Objective
12 Medical Findings of a Disability, as those terms are defined in the Plan. Defendants’
gi B E gw 13 Reply/Response at 10-12. Neither declaration seeks to add any new medical evidence to that
gf; 14 "administrative record," and both declarants were timely identified as expert witnesses on
15 "the absence in that [medical] record of ‘Objective Medical Findings’ of a ‘Disability,’ as
EE § gv 16 those terms are defined by the Intel Long Term Disability Plan." Docket No. 28 1[1[ 1-2;
17 Defendants’ Reply/Response at 10-12. Admission of the two expert declarations is entirely
18 consistent with the rule established in T aj? v. Equitable Lfe Assurance Society, 9 F .3d 1469,
19 1472 (9*** Cir. 1994), restricting an examination for abuse of discretion to the information
20 before the decision-makers at the time of their decisions. See Defendants’ Reply/Response
2 1 at 10- 12.
22 Plaintiff s assertion that she had no opportunity to depose Drs. Fisher and Hendin
23 likewise is incorrect. Plaintiff’s own Proposed Reply cites the terms of the stipulated Rule
24 16 Scheduling Order that allowed her to depose those experts and other witnesses as to:
25 (2) the information and knowledge of the individuals who made the decisions (
26 §°S§‘i%ii?§‘1?$iiti§£Zil? SLEEEQES {EEZ °}§§Zii£‘2.‘i?cY§?.£§*S‘i‘§E.°$£‘£é1¤€Zi.}iE.°
Objective Medical Findings of Plaintiff’ s Disability, as those terms are defiiied
27 in the Plan document.
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Case 2:O4—cv—OO492-RCB Document 51 Filed O8/O2/2005 Page 2 of 3

1 Docket No. 20 at 2. Drs. Fisher and Hendin were timely disclosed on February 18, 2005 as
2 expert witnesses on precisely those issues, Docket No. 28 1111 1-2, and copies of their
3 declarations and curricula vitae were hand-delivered to Plaintiffs counsel on March 9, 2005,
4 Defendants’ Reply/Response at 11 n. 14. Plaintiff did nothing to arrange the depositions of
5 those experts or to extend the time for such depositions (as she did with regard to Dr.
6 Naclunanson, Docket No. 30). Defendants’ Reply/Response at 11 n.14.
7 The Court should deny Plaintiffs motion to submit a reply and strike the Proposed
8 Reply from the record.
9 RESPECTFULLY SUBMITTED this day of August, 2005.
10 JOSEPH E. LAMBERT, P.C.
11
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_ Jo p . Lam ert
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gi E; §,=;· COPY OF THE FOREGOING mailed
gg g°§°§5 14 this Le] day of August, 2005, to:
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Phoenix, Arizona 85014
17 Attorney for Plaintiff
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