Free Motion to Expedite - District Court of Arizona - Arizona

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LAW OFFICES MOHR, HACKETT, PEDERSON, BL AKLEY & RANDOLPH, P.C.
2800 NORTH CENTRAL AVENUE, SUITE 1100 PHOENIX, ARIZONA TELEPHONE FACSIMILE 85004-1043 (602) 240-3000 (602) 240-6600

(AZ BAR FIRM NO. 0046600)

Attorneys for Defendant Metropolitan Life Insurance Company

Robert C. Hackett (AZ Bar No. 001588) ([email protected]) Daniel P. Beeks (AZ Bar No. 012628) ([email protected])

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sybol Terrell-Sims, a married woman,

) ) Plaintiff, ) ) v. ) ) American Express Company, (MetLife), ) a New York Corporation, and ) ) Metropolitan Life Insurance Co., a ) Tennessee Company, ) ) Defendant. ) )

No. CV 03-1340 PHX SRB EMERGENCY MOTION FOR RULING ON MOTION IN LIMINE

Defendant Metropolitan Life Insurance Company ("MetLife") requests that this Court immediately rule on the motion in limine filed by MetLife on December 5, 2005 ("the Motion in Limine"), to which Plaintiff has never responded. Without such a ruling, MetLife cannot adequately prepare for trial, and cannot determine whether to have several witnesses travel from the East Coast to Phoenix to attend the trial. This emergency motion is supported by the following memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES Background This is a case over long-term disability benefits governed by the Employee Retirement Income Security Act ("ERISA").1 Since the beginning of this case, MetLife has contended that the district court's role is limited to determining whether MetLife abused its discretion in deciding to terminate Plaintiff's benefits, and that the Court cannot consider any evidence outside the administrative record reviewed by MetLife.2 On December 5, 2005, MetLife filed the Motion in Limine seeking to exclude all evidence beyond the administrative record considered by MetLife in denying Plaintiff's appeal of the termination of her long-term disability benefits. In the Motion in Limine, MetLife argued that because this dispute is governed by ERISA, and the controlling employee benefit plan documents grant discretion to MetLife to determine Plaintiff's entitlement to disability benefits, the Court is limited to reviewing the administrative record presented to MetLife when it made its final decision to terminate Plaintiff's insurance benefits. In such a case, there is no traditional trial at which testimony is taken in open court. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (ERISA cases should be considered in a bench trial based solely on the documentary record considered by the plan fiduciary); Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999) (the court should limit itself to reviewing the arguments and evidence presented to the plan fiduciary in deciding a plaintiff's claim, and no additional arguments, facts or evidence should be considered).3 MetLife

explained that in reviewing ERISA benefit determinations using the abuse of discretion
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See Joint Proposed Pretrial Order dated December 16, 2005 (docket no. 66) at 2:14. See Joint Case Management Plan dated November 25, 2003 (docket no. 10 at 21:10 ­

21:17). MetLife acknowledges that evidence from outside the administrative record can be considered in determining whether the de novo standard of review applies instead of the abuse of discretion standard. See Tremain v. Bell Industries, Inc., 196 F.3d 970, 976 (9th Cir. 1999). Plaintiff, however, did not contend in the Joint Proposed Pretrial Order that the de novo standard should be applied, and did not identify any evidence that could justify its application.
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standard, the district court sits basically as an appellate tribunal, evaluating the reasonableness of the administrative determination in light of the documentary record compiled before the plan fiduciary. As the First Circuit has stated: . . . in an ERISA benefit denial case, trial is usually not an option: in a very real sense, the district court sits more as an appellate tribunal than as a trial court. It does not take evidence, but, rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary." Leahy v. Raytheon Co., 315 F.3d 11, 17-18 (1st Cir. 2002) (emphasis added). As Judge Broomfield recognized earlier this year, "In abuse of discretion cases, evidence outside the administrative record is completely inadmissible." Maynard v. CNA Group Life Assur. Co. (CIV 04-0525 PHX RCB), 2006 U.S. Dist. LEXIS 1043 (D. Ariz. 1/10/06). As explained in the Joint Proposed Pretrial Order, Plaintiff has never responded to the Motion in Limine.4 MetLife had previously raised these identical issues in the Joint Case Management Plan dated November 25, 2003 (docket no. 10 at 21:10 ­ 21:17); and in its Status Report dated October 18, 2005 (docket no. 63 at 5:26 ­ 6:6). MetLife re-urged the Motion in Limine in the proposed joint pretrial order filed on December 16, 2005.5 In the Joint Pretrial, MetLife suggested that because new evidence was inadmissible, the parties should be ordered to submit simultaneous briefs regarding the abuse of discretion issue, along with proposed findings of fact and conclusions of law.6 Unfortunately, Plaintiff failed to appear at the pretrial conference held on December 19, 2005. The Court then vacated the trial that was set for January 10, 2006, and ordered Plaintiff to show cause why her case should not be dismissed. Because Plaintiff did not appear, the Court did not rule on the Motion in Limine, or any of the issues raised in the Joint Proposed Pretrial Order.
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Proposed Pretrial Order dated December 16, 2005 (docket no. 66) at 18:15. Proposed Pretrial Order dated December 16, 2005 (docket no. 66) at 7:1 ­ 7:18; 18:3 ­ 18:15; 18:20 ­ 18:26; 19:6 ­ 19:15. 6 Proposed Pretrial Order dated December 16, 2005 (docket no. 66) at 19:9 ­ 19:12.
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When the Court issued its order on March 8, 2006 resetting the trial for March 24, 2006, it did not rule on the Motion in Limine, or set a pretrial conference at which the issue could be decided. The assistant to MetLife's attorney then contacted chambers to request clarification on these issues or alternatively to seek a pretrial conference at which the issues could be resolved. Chambers later advised MetLife's attorneys that no pretrial conference would be held, and that the parties should be prepared to present their evidence on March 24, 2006. Unfortunately, these comments did not clarify the outstanding issues. What "evidence" should MetLife be prepared to present on March 24th ­ a paper administrative record, or several live witnesses who will then testify and provide foundation for certain documentary exhibits? The Parties Need This Issue Resolved in Order to Adequately Prepare for any "Trial" MetLife expected that this issue would be resolved at the pretrial conference. It was only because Plaintiff failed to appear at the conference that the issue was not resolved. MetLife should not be further prejudiced because of Plaintiff's failure to appear. MetLife is entitled to know whether the Court intends to sit as a traditional trial court, considering testimony and exhibits, or (as MetLife recommends) to sit basically as an appellate court, reviewing the administrative record. If live testimony is going to be taken, the parties need to make arrangements for witnesses to appear at the trial, including serving trial subpoenas and making travel arrangements for out of state witnesses. If live testimony is to be taken, MetLife will need to make arrangements for its employee who decided Plaintiff's administrative appeal, and all of the independent physician consultants who provided reports to MetLife regarding Plaintiff's claim to attend the trial. None of these witnesses reside in Arizona. The independent physician consultants are not even employees of MetLife. The Court can certainly take judicial

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notice of the difficulty in arranging for several non-employee physicians to travel to Arizona for trial on 16 days notice. Without an advance ruling, MetLife faces the dilemma of either: (1) requesting and paying for the witnesses to travel to Phoenix, just to find out that the Court intends to grant the motion and limit itself to considering the documentary administrative record; or (2) not requesting the witnesses to travel to Phoenix, and then learning that the Court intends to deny the motion, and to conduct a normal trial at which MetLife would then have nobody to lay foundation for its records, or present any testimony rebutting Plaintiff's witnesses. Conclusion Because the Court set the trial only 16 days after its order, MetLife requests that this Court decide whether it will limit the evidence it considers to the documents in the administrative record as quickly as possible. Assuming that the Court grants the Motion in Limine, MetLife recommends that the Court order that the parties submit to the Court on or before March 24, 2006 the following: 1. 2. the administrative record; briefs regarding whether MetLife abused its discretion in terminating Plaintiff's benefits; and 3. proposed findings of fact and conclusions of law.

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DATED: March 10, 2006 MOHR, HACKETT, PEDERSON, BLAKLEY & RANDOLPH, P.C. By /s/ Daniel P. Beeks Robert C. Hackett Daniel P. Beeks Suite 1100 2800 North Central Avenue Phoenix, Arizona 85004-1043 Attorneys for Defendant Metropolitan Life Insurance Company COPIES of the foregoing mailed March 10, 2006 to: The Honorable Susan R. Bolton United States District Court of Arizona 401 West Washington, SPC 50 Phoenix, AZ 85003-0001 Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

/s/ Daniel P. Beeks

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