Free Other Notice - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

L AW OF F I C E S M O H R , H A C K E T T, P E D E R S O N , B L A K L E Y & R A N D O L P H , P . C .
2800 NORTH CENTRAL AVENUE, SUITE 1100 P H O E N I X , A R I Z O N A 8 5 0 0 4 -1 0 4 3 T E L E P H O N E ( 6 0 2 ) 2 4 0 -3 0 0 0 F A C S I M I L E ( 6 0 2 ) 2 4 0 -6 6 0 0 (AZ BAR FIRM NO. 0046600)

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

Attorneys for Defendant Metropolitan Life Insurance Company

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Sybol Terrell-Sims, a married woman,

) ) Plaintiff, ) ) v. ) ) American Express Travel Related ) Services Co., a New York Corporation, ) and ) ) Metropolitan Life Insurance Co., a ) Tennesssee Company, ) ) Defendant. )

No. CV 03-1340 PHX SRB PROPOSED PRETRIAL ORDER

Pursuant to this Court's orders dated December 2, 2003 and March 4, 2005, plaintiff Sybol Terrell-Sims ("Plaintiff") and defendant Metropolitan Life Insurance Company ("MetLife") submits the following separate proposed pretrial order to be considered at the pretrial conference scheduled for December 19, 2005 at 9:30 a.m. before Judge Bolton.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

1Filed 12/16/2005

Page 1 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A. TRIAL COUNSEL FOR THE PARTIES Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Telephone: (480) 283-9020 Fax: (480) 283-9020 Plaintiff Robert C. Hackett Daniel P. Beeks Mohr, Hackett, Pederson, Blakley & Randolph, P.C. 2800 North Central Avenue Phoenix, Arizona 85004-1043 Telephone (602) 240-3000 Facsimile (602) 240-6600 Attorneys for Defendant Metropolitan Life Insurance Company B. STATEMENT OF JURISDICTION/VENUE. 1. Plaintiff's Statement of Jurisdiction / Venue This action is brought pursuant to the Family Medical Leave Act, 29 U.S.C. 2601 et.seq. ("FMLA"), the Employees Retirement Income Security Act (ERISA) 29 U.S.C. 1001. Jurisdiction over the federal claims is invoked pursuant to 28 U.S.C. 1331 and 1343(4). Venue is proper because all claims arose in this judicial district, and Plaintiff has resided in Maricopa County, Arizona since the litigation commenced.. 2. MetLife's Statement of Jurisdiction / Venue a. MetLife's Position on Jurisdiction / Venue Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C.§ 1132, and based on federal questions arising under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1001-1461 ("ERISA"). Venue is proper because Plaintiff has lived in Maricopa County, Arizona at all relevant times. b. MetLife's Objections to Plaintiff's Position MetLife objects to Plaintiff's statement of jurisdiction / venue to the extent it relies on the FMLA and pendent jurisdiction. As explained in more detail below, Plaintiff cannot have a FMLA claim against MetLife. Furthermore, Plaintiff has not
402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

2Filed 12/16/2005

Page 2 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

alleged any state law claims as against MetLife. C. NATURE OF ACTION. 1. Plaintiff's Description of the Nature of the Action This is an ERISA suit wherein the plaintiff-Sybol Terrell-Sims, was denied claim for disability benefits under the employee welfare plan sponsored by her former employer, American Express, and administered by MetLife. On November 16, 2001, Plaintiff was involved in an auto accident which contributed to disabling injuries-pain, muscle spasms, severe headaches, inflammation, uncontrolled hypertension and asthma. Several pain medications and long-term physical therapy were p rescribed. However, due to Plaintiff's workload, she was unable to begin physical therapy until August 2002. In August 2002, Plaintiff began to experience muscle weakness, chronic aching and pain in her joints, numbness in hands and feet, insomnia, memory problems, depression, irritable bowels, kidney problems, fatigue, and severe hypertension. On November 11, 2002, Plaintiff began Medical Leave. Even though Plaintiff complied with Family Medical Leave, policies and procedures set forth by American Express and MetLife, Defendant Metropolitan Life Insurance, Co. denied Plaintiff's request for disability benefits and failed to provide medical forms for certification timely and/or not at all. Plaintiff timely appealed Defendant, MetLife's wrongful denial of disability benefits to the Defendants according to the Defendant's benefits plan. On May 26, 2003, MetLife rejected Plaintiff's appeal for short and long-term disability benefits. In November 2003, the Social Security Administration, awarded Plaintiff disability benefits. In April 2005, Plaintiff was diagnosed with Type 2 Diabetes. On August 2, 2005, MetLife wrote "Administrative remedies under the plan have been exhausted, therefore, no further appeals will be considered." By their acts and

omissions, Defendants violated Plaintiffs rights as protected by Title I of the Americans with Disabilities Act (A.D.A), 42 U.S.C.11601et seq, the Employees Retirement Income Security Act (ERISA) 29 U.S.C.et seq. As Claim Administrator, MetLife

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

3Filed 12/16/2005

Page 3 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

abused its discretion and acted unreasonable. E.g. Highshue v. AIG Life Ins, Co., 135 F3d 1144, 1147,(7th Cir. 1998), Brehemer V. Inland Steel Industries Pension Plan, 114 F. 3d 656, 660 (7th Cir. 1997). 2. Defendant's Description of the Nature of the Action a. MetLife's Description of the Current Posture of the Action In her second amended complaint dated December 12, 2003, Plaintiff asserted claims against MetLife based on ERISA and the FMLA. Plaintiff had also asserted a number of civil rights claims against her former employer, American Express T ravel Related Services Co. ("American Express"). In June, 2005, Plaintiff settled with

American Express, and dismissed all of her claims against American Express with prejudice. In her ERISA claim against MetLife, Plaintiff seeks to recover disability benefits available under the employee benefit plan of her former employer, American Express Travel Related Services Co. ("American Express"). MetLife administered disability benefits provided by American Express' employee benefits plan. There were two types of disability benefits available under American Express' employee benefits plan: salary continuation (short term disability); and long term

disability ("LTD"). Under the American Express plan, salary continuation covers the first 26 weeks of an employee's disability, and LTD covers any disability continuing after that. MetLife administered, but did not fund, salary continuation benefits provided by the Plan. American Express was responsible to pay any salary continuation benefits out of its own assets. MetLife administered and funded LTD benefits provided by the Plan. Because Plaintiff has released American Express from all liability in this litigation, only LTD benefits remain at issue. Plaintiff claims that she was disabled as a result of injuries she sustained in a motor vehicle accident and/or from depression.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

4Filed 12/16/2005

Page 4 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

It is not clear to MetLife what the basis is for the FMLA claim that Plaintiff has asserted against MetLife. MetLife administered FMLA benefits for American Express. MetLife approved Plaintiff for the maximum amount of leave required by FMLA statutes. To the extent that Plaintiff alleges that she was terminated in retaliation for requesting FMLA leave, any alleged termination of Plaintiff would have been done by American Express. Because Plaintiff has released American Express, it does not appear that this can form the basis of a claim under the FMLA. Therefore, for purposes of the remainder of this proposed pretrial order, MetLife will assume that the only remaining claim against MetLife is the claim for LTD benefits under ERISA. b. MetLife's Objections to Plaintiff's Description of the Nature of the Action Plaintiff contends that on May 23, 2003, MetLife denied her claim for both short and long-term disability benefits. Plaintiff never filed a claim for long-term disability benefits. She only filed for salary continuation benefits. MetLife denied this claim on March 20, 2003. Plaintiff appealed this denial. Before the appeal could be decided, Plaintiff filed this litigation. Plaintiff and MetLife subsequently stipulated to stay the litigation so that the administrative appeal could be concluded. As part of the

stipulation, MetLife agreed not to contend that Plaintiff had failed to timely submit her claim for LTD benefits. MetLife denied Plaintiff's administrative appeal on August 2, 2005. Plaintiff also references the fact that the Social Security Administration awarded her disability benefits. This is irrelevant. It is well established that an ERISA plan administrator is not bound by a Social Security Administration disability determination when reviewing a claim for benefits under an ERISA plan. See, e.g., Whitaker v. Hartford Life and Acc. Ins. Co., 404 F.3d 947, 949 (6th Cir. 2005). Plaintiff's description also appears to include a claim against MetLife under the

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

5Filed 12/16/2005

Page 5 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Americans with Disabilities Act ("ADA"). Although Plaintiff had included an ADA claim as Count I in her original complaint, that claim was abandoned in the second amended complaint dated December 13, 2003. 3. Plaintiff's Response to Defendant's Objection According to benefits information from former employer American Express, Plaintiff was not required to file a claim for Long Term Disability. If at the end of the 26 weeks of disability, you are still medically unable to return to work and have elected and paid for that benefit, MetLife case manager "will initiate the LTD claim on your behalf when it becomes necessary." MetLife denied Plaintiff claim in March 2003 and May 2003. Plaintiff filed a lawsuit against Defendant in June 2003. The settlement with American Express clearly did not release MetLife from any benefits due Plaintiff.. Plaintiff elected LTD Retirement, ISP, 401k, vision and dental through payroll deduction, Title I and Title II of ERISA contain provisions which applicable to the ISP and the Retirement Plan. The Social Security Administration determined that Plaintiff was disabled since November 2, 2002, which includes the period during and after 12 week Family Medical Leave. D. JURY/NON-JURY. Although Plaintiff's complaint and subsequent amended complaints each demanded a jury trial, Plaintiff agrees that ERISA does not allow for a jury trial. See, e.g., Thomas v. Oregon Fruit Prods. Co., 228 F.3d 991, 996 (9 th Cir. 2000) ("plan participants and beneficiaries are not entitled to jury trials for claims brought under, or preempted by, section 502 of ERISA"); Raithaus v. Unum Life Ins. Co. of Am., 335 F. Supp. 2d 1098, 1130 (D. Hawaii 2004) ("Although the Plaintiff has requested a jury trial, the Ninth Circuit has held that ERISA claims for benefits must be resolved in a bench trial on the administrative record.").

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

6Filed 12/16/2005

Page 6 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MetLife's Position That No Testimony is Allowed in Deciding Plaintiff's Claim. As outlined in MetLife's motion in limine regarding evidence outside the administrative record, MetLife contends that there should be no actual trial where evidence is admitted or testimony is taken. Rather, the court should basically sit as an appellate tribunal, and review the administrative record considered by MetLife in denying Plaintiff's disability claim, to evaluate the reasonableness of MetLife's claim decision in light of the documentary evidence considered by MetLife. See, e.g.,

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); Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002) (in an ERISA benefits lawsuit, the district court sits basically as an appellate tribunal, evaluating the reasonableness of an administrative determination in light of the documentary record compiled before the plan fiduciary). The Court should limit itself to reviewing the arguments and evidence presented to MetLife in deciding Plaintiff's claim, and no additional arguments, facts or evidence should be considered. Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999); McKenzie v. General Tel. Co. of Cal., 41 F.3d 1310, 1316 (9th Cir. 1994). E. CONTENTIONS OF THE PARTIES. 1. Plaintiff's Contentions Plaintiff made several request to MetLife for a medical evaluation from a physician of their choice. The request was ignored. Therefore, the grant of Social Security disability benefits to Plaintiff is significant. The Social Security Administration does not pay for partial disability or for short term disability. Further, the nature of Plaintiff's illness requires daily medication prescribed by physician (s) and monitoring. The basis of MetLife's denial of benefits to Plaintiff's is "Under the American Express Salary Continuation Benefit Plan-Disability or Disabled means that "due to an injury or sickness, you require the regular care and attendance of doctor and you are unable to

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

7Filed 12/16/2005

Page 7 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

perform each of the material duties of your regular job".

The Social Security

Administration made a determination that Plaintiff was disabled under their rules, therefore further litigation on those grounds are obsolete. E.g. McNamara v City of Chicago, 138 F 3d 1219, 1225 (7th Circuit 1998). By their acts and ommissions, Defendant MetLife denied Plaintiff benefits afforded her by the Employee Benefits Income Security Act, 29 U.S.C.. 1001 et seq. Wherefore Plaintiff respectfully request the Court to: A. Issue a judgment declaring that the conduct of Defendant Metropolitan Life Insurance Co., as described violated Plaintiff's rights under the Family and Medical Leave Act 29 U.S.C. 2601 1901 et seg, Employment Retirement Income Security (ERISA), 29 U.S.C. 1001 et seg. B. Issue judgment award Plaintiff nominal damages against Defendants Metropolitan Life Insurance Co in an amount $1.00. C. Issue preliminary and permanent injunctions against Defendant Metropolitan Life Insurance Co. prohibiting them from committing similar unlawful acts in the future. D. Issue a judgment awarding Plaintiff compensatory and liquidated damages including back pay against defendants Metropolitan Life Insurance Co, in the amount to be determined at trial. E. Issue a judgment awarding Plaintiff her reasonable costs and fees paid to former attorney's pursuant to 42 U.S. C. 1988 and any other applicable law. 2. MetLife's Contentions a. Plaintiff was not Totally Disabled for the Six Month Waiting Period Required for LTD Benefits. Plaintiff never actually submitted a claim for LTD benefits. She only submitted a claim for salary continuation benefits. MetLife paid salary continuation benefits to Plaintiff through January 31, 2003, and then terminated the benefits. As part of the

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

8Filed 12/16/2005

Page 8 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

parties stipulation to stay the litigation so that MetLife could complete its administrative appeal process, the parties agreed that MetLife would not contend that Plaintiff failed to timely submit a claim for LTD benefits. In its August 2, 2005 decision on the

administrative appeal, MetLife upheld its decision to terminate Plaintiff's salary continuation benefits as of January 31, 2003 because the documents submitted by Plaintiff did not evidence that after January 31, 2003, she had a severity of impairment due to sickness or injury that rendered her unable to perform each of the duties of her sedentary job with American Express. This finding is logically determinative of Plaintiff's claim for LTD benefits. To be eligible for LTD benefits, an employee must have been totally disabled for six months. Because Plaintiff failed to establish she was totally disabled for this six month period, she is not entitled to LTD benefits. b. Standard of Review. There are two possible standards of review in an ERISA benefits case: de novo; and "abuse of discretion." The default rule requires the district court to review an administrator's denial of ERISA benefits de novo, unless the plan unambiguously grants the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989); Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1204 (9th Cir. 2000). As discussed in MetLife's motion in limine, the summary plan description for the American Express LTD plan provides that MetLife is the designated "Claims Fiduciary" for LTD benefits. It also provides that as the Claims Fiduciary, MetLife has "discretionary authority . . . under ERISA to make claim determinations and to provide a full and fair review of appealed claims including determining any final appeals of claim." The plan documents further provide that MetLife's decisions

regarding LTD benefits "are conclusive and binding on all parties and are not subject to

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

9Filed 12/16/2005

Page 9 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

further review." Thus, MetLife contends it has carried this initial burden, and that the "abuse of discretion" standard of review is applicable. Once MetLife has establishe d that the "abuse of discretion" standard of review is initially applicable, the next issue which must be considered is whether MetLife allowed its apparent conflict of interest, arising from its dual source as plan fiduciary and funding source for LTD benefits, to improperly influence its claim decision. Tremain v. Bell Industries, Inc., 196 F.3d 970, 976 (9th Cir. 1999). In this analysis, Plaintiff has the burden of providing "material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary's self-interest caused a breach of the administrator's fiduciary obligations to the beneficiary." Atwood v. Newmont Gold Co., 45 F.3d 1317, 1323 (9th Cir. 1995). If Plaintiff fails to make such a showing, then the Court should apply the traditional abuse of discretion standard. Id. If the Plaintiff does meet this burden, then the burden shifts back to MetLife to produce evidence to show that the conflict of interest did not affect the decision to deny benefits. Id. If MetLife can make such a showing, the standard of review is abuse of discretion. Otherwise, the Court must review the benefit denial de novo. Plaintiff's portion of the joint case management plan cited the Ninth Circuit's opinion in Regula v. Delta Family Care Survivorship Plan, 266 F.3d 1130 (9th Cir. 2001) as holding that Plaintiff could meet its burden to show that MetLife allowed its self-interest to cause it to breach its fiduciary duties to Plaintiff by establishing that MetLife ignored important evidence regarding Plaintiff's claims and failed to develop the relevant facts in making its determination. Such language, however, is not found anywhere in the Regula case. In any event, after the joint case management plan was filed, the Ninth Circuit vacated the Regula opinion based on the United States Supreme Court's decision in Black & Decker v. Nord, 538 U.S. 822 (2003). See Regula v. Delta Family Care Survivorship Plan, 354 F.3d 1133 (9th Cir. 2004) (vacating prior opinion). Plaintiff has failed to demonstrate that MetLife failed to develop or consider any

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

10 Filed 12/16/2005

Page 10 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

relevant facts in making its claim determination. The administrative record establishes that MetLife actually did attempt to develop relevant facts by writing to Plaintiff's former attorney and requesting additional records on August 14, 2003. Rather than providing the requested information, Plaintiff's former attorney filed suit on September 9, 2003. In addition, after Plaintiff filed the joint case management plan, MetLife provided Plaintiff and her replacement attorney with yet another opportunity to submit any relevant facts or documents, and to point out any important evidence which would support Plaintiff's claim for LTD benefits. The parties stipulated to stay the litigation as against MetLife while this appeal was processed. It was Plaintiff's burden to develop the evidence to establish her disability. AS noted in MetLife's August 2, 2005 letter denying Plaintiff's appeal, the American Express salary continuation plan provided that "Proof of your disability is your responsibility and is to be provided at your expense to the claims administrator." When this type of language is present in plan documents, the plaintiff in an ERISA benefits case bears the burden at all times in proving continuous disability as defined by the plan. See, e.g., Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991). Thus, there is no basis for finding that MetLife allowed its apparent conflict of interest to improperly affect its claim decision. As a result, the abuse of discretion standard of review should be applied. c. Application of "Abuse of Discretion" Standard of Review Under the "abuse of discretion" standard of review, MetLife's decision should be upheld if it is based upon a reasonable interpretation of the plan's terms and was made in good faith. Abatie v. Alta Health & Life Ins. Co., 421 F.3d 1053, 1066 (9th Cir. 2005). An ERISA administrator abuses its discretion only if it (1) renders a decision without explanation, (2) construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) relies on clearly erroneous findings of fact. Boyd v. Bell, 410 F.3d 1173, 1178 (9 th Cir. 2005).

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

11 Filed 12/16/2005

Page 11 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MetLife did not render its decisions without explanation. In fact, MetLife issued a six page, single spaced letter describing the evidence it had reviewed, and the reasons for its denial of Plaintiff's claim. MetLife did not construe any provisions of the plan in a way that conflicted with the plain language of the plan. MetLife did not rely on any clearly erroneous findings of fact in denying Plaintiff's claim. d. MetLife is not Bound by the Social Security

Administration's Finding that Plaintiff was Disabled An ERISA plan administrator or fiduciary is not bound by a Social Security determination that a plan participant is "disabled." Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 950 n. 9 (8th Cir.2000); Anderson v. Operative Plasterers' & Cement Masons' Int'l Ass'n Local No. 12 Pension & Welfare Plans, 991 F.2d 356, 358-59 (7th Cir.1993); Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1286 (9th Cir.1990), cert. denied, 498 U.S. 1087, 111 S.Ct. 964, 112 L.Ed.2d 1051 (1991). This is in part because, although the Social Security Administration is required to give deference to a treating physician's opinions regarding disability, an ERISA fiduciary is not under a similar obligation. Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003). Thus, the fact that Plaintiff receives Social Security

disability benefits is not controlling. MetLife considered the Social Security records, and discussed the opinions of the Social Security review physician, Dr. Zerrudo. This is all that was required. e. MetLife was not Required to Request an Independent Medical Examination In her contention, Plaintiff claims to have requested that MetLife have her examined by a physician of their choice. Even if this was true (a fact that MetLife does not concede), it is irrelevant.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

12 Filed 12/16/2005

Page 12 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ERISA does not require that MetLife request that the plaintiff submit to an independent medical examination before determining disability based only on a consulting physician's review of the file. Jordan v. Northrop Grumman Corp., 63 F. Supp. 2d 1145, 1158 (C.D. Cal. 1999), citing Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 602 (5th Cir. 1994). See also Gannon v. Metropolitan Life Ins. Co, 360 F.3d 211, 214 (1st Cir. 2004) (physician's independent review of a claimant's file is reliable medical evidence to support denial of benefits even though he did not physically examine claimant); Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1148 (7th Cir. 1998) (administrator entitled to rely on physician's independent review of claimant's medical file); Brucks v. Coca-Cola Co., 391 F. Supp. 2d 1193,1205 (N.D. Ga. 2005) ("Imposing such a requirement is inconsistent with ERISA, which places the burden on the claimant to demonstrate she is entitled to benefits under the plan, not on the administrator to demonstrate that the claimant is not disabled."); Kocsis v. Standard Ins. Co., 142 F. Supp. 2d 241, 252 (D. Conn. 2001) (summary judgment appropriate based on two physicians' independent review of the plaintiff's entire claim file). F. STIPULATIONS AND UNDISPUTED FACTS.

G. PLAINTIFF'S CONTENTIONS OF DISPUTED FACT. The August 2, 2005, letter from MetLife contain comments that Plaintiff denies and some of the information from medical care provider are not accurate. MetLife

stated that the " entire claim file has been reviewed." Plaintiff dispute the fact that the entire claim file was reviewed. Plaintiff was treated by several physician at Luke AFB, AZ. This information has been omitted, even though it was provided to Defendant. The letter from MetLife was forward to Plaintiff former attorney, violating Plaintiff's privacy rights. Plaintiff disputes the fact that Plaintiff was not disabled before the 6 month waiting period for LTD claim.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

13 Filed 12/16/2005

Page 13 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

H. DEFENDANT'S CONTENTIONS OF DISPUTED FACT. MetLife does not know which, if any facts as set forth in MetLife's August 2, 2005 letter denying Plaintiff's appeal are disputed. Plaintiff's contentions of disputed fact above reference undesignated "comments" in the letter Plaintiff denies, and states that "some" unidentified information is not accurate. identification, MetLife cannot respond. I. ISSUES OF LAW IN CONTROVERSY. See issues regarding applicable standard of review above. J. SEPARATE TRIAL OF ISSUES. 1. Plaintiff's Issues Plaintiff 's issue to exercise 1000 shares of stock options based on Social Without more specific

Security Administration determination that Plaintiff was disabled on November 2, 2002, and information from 2002/2003 Employee Handbook. The Plan Distribution states "Effective October 1, 2002, "Disability" or ''Disabled" means a physical or mental condition that the Social Security Administration has determined through official written action which is of such a nature that it renders you eligible for disability benefits under the federal Social Security Act as now enacted or hereinafter amended. As proof of Disability, you shall provide to the Administration Committee the official written determination of Disability by the Social Security Administration. The award letter of proof was provided were provided to the Plan Administrator and MetLife. Disability occurred prior to Plaintiff's termination, therefore Plaintiff is eligible to receive these options. Again, Plaintiff's settlement with American Express does not release any claims associated with Plaintiff's Disability. 2. MetLife's Issues MetLife does not believe that separate trials of any issues is advisable or feasible. MetLife objects to Plaintiff's separate issue regarding stock options. MetLife had nothing to do with stock options. Any stock options would have been granted by

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

14 Filed 12/16/2005

Page 14 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

American Express. MetLife was not responsible for administering such stock options. Rather, the plan language makes it clear that proof of a written determination of disability from the Social Security Administration was to be submitted to the "Administration Committee" of American Express, not to MetLife. Plaintiff has settled with American Express, and has presumably released any such claims. K. WITNESSES 1. Plaintiff's Witnesses a. Sybol Terrell-Sims ­ shall testify b. Jessica Blanco, MD-medical condition ­ may be called c. Traci Paige-MD, medical condition ­ may be called d. Chuck Mangubat, MD-medical condition ­ may be called e. Michael W. Sims, Sr-Overall condition ­ may be called 2. Defendant's Witnesses As discussed in MetLife's motion in limine, MetLife contends that no evidence beyond the administrative record should be admissible. As a result, MetLife objects to any live testimony from any witnesses. In the event the Court denies MetLife's motion in limine, MetLife plans to call the following witnesses: a. Sharon Muldrow, MetLife Procedure Analyst who authored

the August 2, 2005 denial of Plaintiff's appeal; b. MetLife's independent physical and rehabilitation medicine

consultant referenced in the August 2, 2005 denial of Plaintiff's appeal; c. MetLife's independent pulmonary and internal medicine

consultant referenced in the August 2, 2005 denial of Plaintiff's appeal; d. MetLife's independent psychiatry and neurology consultant

referenced in the August 2, 2005 denial of Plaintiff's appeal; and e. Lisa Ferrell ­ Plaintiff's supervisor at American Express.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

15 Filed 12/16/2005

Page 15 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

If testimony is to be received, MetLife also objects to Plaintiff's proposed witnesses Blanco and Mangubat. Although MetLife's counsel has not had an

opportunity to review the entire administrative record, MetLife does not believe these witnesses were ever previously disclosed. L. EXPERTS. 1. Plaintiff's Witnesses Social Security Administration 2. Defendant's Witnesses As discussed in MetLife's motion in limine, MetLife contends that no evidence beyond the administrative record should be admissible. As a result, MetLife objects to any live testimony from any expert witnesses. MetLife believes, however, that the Court should review the reports of MetLife's outside physician consultants which are contained in the administrative record, and referenced in MetLife's letter denying Plaintiff's appeal, including experts in the following fields: 1. 2. 3. Physical and rehabilitation medicine; Pulmonary and internal medicine; and Psychiatry and neurology.

If the Court denies MetLife's motion in limine, then MetLife intends to call these experts to testify at trial. M. EXHIBITS AND DEPOSITIONS. 1. Plaintiff's Exhibits 1 - 21 Documents to/from MetLife 22 - 27 Correspondence to Plan Administration 28-112- Medical Records 113-154- Medical Bills 155-166-Medications descriptions/side affects

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

16 Filed 12/16/2005

Page 16 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

167-171- Certified mail receipts to MetLife 172- 181 Documents of Economic impact of denial 181-187- Social Security Administration 187-201- Attorney invoices/payment 202-American Express Employee Handbook 203-210-Stock Options Documents 204 ­ Payroll documentation 295 ­ American Express Statement of Benefits 2. Defendant's Exhibits As discussed in MetLife's motion in limine, MetLife contends that no evidence beyond the administrative record should be admissible. As a result, MetLife believes that the entire administrative record should be the only documentary evidence considered by the Court. The only deposition taken in this case was Plaintiff's deposition, taken by former defendant American Express. Because MetLife contended that evidence outside the administrative record should not be admissible, MetLife did not question Plaintiff at this deposition. MetLife objects to Plaintiff presenting her own deposition testimony at trial. MetLife also objects to Plaintiff's listed exhibits as lacking sufficient information to identify the anticipated exhibits. MetLife agrees that documents to and from MetLife relating to Plaintiff's claim for salary continuation benefits would be considered part of the administrative record, and should be considered by the Court. Similarly, those portions of the summary plan description contained within an employee handbook relating to salary continuation and LTD benefits should also properly be considered by the Court.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

17 Filed 12/16/2005

Page 17 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

N. MOTIONS IN LIMINE AND REQUESTED EVIDENTIARY RULINGS. 1. Plaintiff's Motions 2. MetLife's Motions MetLife has filed a motion in limine regarding evidence outside the administrative record. See Banuelos v. Constr. Laborers' Trust Funds for S. Cal., 382 F.3d 897, 904 (9th Cir. 2004) (the abuse of discretion standard permits the district court to review only the evidence presented to the plan trustees); Taft v. Equitable Life Assurance Soc'y, 9 F.3d 1469, 1473 (9th Cir. 1994) (consideration of evidence outside the administrative record would open the door to the anomalous conclusion that a plan administrator abused its discretion by failing to consider evidence not before it); Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 943 (9th Cir. 1995) (evidence outside the administrative record is generally not admissible even if the de novo standard of review is applied). Plaintiff has failed to respond to this motion. O. PROBABLE LENGTH OF TRIAL. 1. Plaintiff's Position Plaintiff request that all evidence relating to Plaintiff's Disability claim is admitted as evidence in lieu of the fact, that MetLife has intentionally omitted relevant medical documentation to changing the date to a later day. 2. MetLife's Position Since MetLife contends that no evidence outside the administrative record should be considered, MetLife does not believe there should be any "trial," at which evidence is admitted. As explained in subsection "D" above, relating to Plaintiff's demand for a jury trial, MetLife believes that the Court should simply review the documentary administrative record to determine if MetLife abused its discretion.

402781.2\15987-021 Case 2:03-cv-01340-SRB

Document 66

18 Filed 12/16/2005

Page 18 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

P. TRIAL DATE. 1. Plaintiff's Position Plaintiff request that the proceeding scheduled for January 10, 2006, remain. Twenty Three days in sufficient time to make travel arrangements, therefore, Plaintiff objects to delaying the presently scheduled trial. 2. MetLife's Position Trial is currently scheduled for January 10, 2006. Assuming the Court grants MetLife's motion in limine, and bars the admission of any evidence outside the administrative record, MetLife suggests that on January 10, 2006, the parties should be ordered to submit: the administrative record; simultaneous briefs regarding the abuse of discretion issue; and proposed findings of fact and conclusions of law. If the Court denies MetLife's motion in limine, and intends to consider evidence outside the administrative record, MetLife requests that the trial not be set any earlier than February 1, 2005, so that appropriate witnesses can make travel arrangements. MetLife's counsel currently has trials in other cases scheduled on: March 1 ­ March 8, 2006; April 4 ­ April 12, 2006; and May 2 ­ May 10, 2006.

DATED: December 16, 2005 SYBOL TERRELL-SIMS

22 23 24 25 26 27 28
402781.2\15987-021 Case 2:03-cv-01340-SRB

By Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

Document 66

19 Filed 12/16/2005

Page 19 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
402781.2\15987-021 Case 2:03-cv-01340-SRB

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 COPY of the foregoing hand-delivered December 16, 2005 to: The Honorable Susan R. Bolton United States District Court of Arizona 401 West Washington, SPC 50 Phoenix, AZ 85003-0001 And a Copy MAILED to: Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

/s/ Daniel P. Beeks

Document 66

20 Filed 12/16/2005

Page 20 of 20