Free Other Notice - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Stephen M. Bressler (09032) Ann-Martha Andrews (012616) Scott Bennett (022350) Attorneys for Defendants UnumProvident Corporation and Provident Life and Accident Insurance Company

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) ) vs. ) ) UNUMProvident Corporation and Provident ) Life and Accidental Insurance Company, ) ) Defendants. ) ) ) Brett D. Leavey,

No. CIV-02-2281-PHX-SMM REVISED JOINT PROPOSED PRETRIAL FORM OF ORDER

Pursuant to this Court's order of September 2, 2005, the following is the joint

15 proposed final pretrial order for the trial set for September 13, 2005. 16 17 behalf. 18 19 20 21 22 23 24 25 26 27 28 A. COUNSEL FOR THE PARTIES Plaintiff's counsel have given defendants' counsel permission to sign on their

Plaintiff: Steven C. Dawson DAWSON & ROSENTHAL, P.C. 6586 Highway 179, Suite B-2 Sedona, AZ 86351 Phone: (602) 494-3800 Fax: (623) 580-9032 E-mail: [email protected] Gregg H Temple 4835 E Cactus Rd Suite 225 Scottsdale, AZ 85254-4196 Phone: (602) 808-0508 Fax: (602) 808-0507 Email: [email protected]
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Anita Rosenthal DAWSON & ROSENTHAL, P.C. 6586 Highway 179, Suite B-2 Sedona, AZ 86351 Phone: (602) 494-3800 Fax: (623) 580-9032 E-mail: [email protected]

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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 Defendants: Stephen Bressler LEWIS AND ROCA, L.L.P 40 N. Central Ave., Suite 1900 Phoenix, AZ 84004 Phone: (602) 262-5376 Fax: (602) 734-3742 E-mail: [email protected] Scott Bennett LEWIS AND ROCA, L.L.P 40 N. Central Ave., Suite 1900 Phoenix, AZ 84004 Phone: (602) 262-5338 Fax: (602) 734-3816 E-mail: [email protected] B. STATEMENT OF JURISDICTION Ann-Martha Andrews LEWIS AND ROCA, L.L.P 40 N. Central Ave., Suite 1900 Phoenix, AZ 84004 Phone: (602) 262-5707 Fax: (602) 734-3764 E-mail: [email protected]

Jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. Jurisdiction is not disputed. C. NATURE OF ACTION

This lawsuit arises out of a claim for benefits under an individual disability insurance policy. The plaintiff alleges the defendants handled his disability claim in bad faith. He seeks compensatory and punitive damages. D. CONTENTIONS OF THE PARTIES 1. Bad Faith

To prevail on his bad faith claim, plaintiff must prove by a preponderance of the evidence: 1. Breach: "In the investigation, evaluation, and processing of the claim,

the insurer acted unreasonably and either knew or was conscious of the fact that its conduct was unreasonable;" Zilisch v. State Farm, 196 Ariz. 234, 995 P.2d 276 (2000), and 2. Causation: That the breach was a cause of the plaintiff's damages; and
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3.

Damages: The amount of plaintiff's damages.

See RAJI (Civil) 4th, Bad Faith 1, Duty of Good Faith and Fair Dealing; Noble v. National American Life Ins. Co., 128 Ariz. 188, 624 P.2d 866 (1981); Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986); Zilisch, 196 Ariz. 234, 995 P.2d 276. 2. Punitive Damages

The plaintiff must first prove liability for bad faith. The plaintiff must then provide, by clear and convincing evidence, that the defendant's wrongful conduct "was guided by an evil mind." Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 (Ariz. 1986). An "evil mind" can be established by evidence that the defendant either "(1) intended to injure the plaintiff, (2) was motivated by spite or ill will, or (3) acted to serve his own interests, having reason to know and consciously disregarding a substantial risk that his conduct might significantly harm others." Walter v. Simmons, 169 Ariz. 229, 240, 818 P.2d 214, 225 (Ariz. Ct. App. 1991) (citing Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 Ariz. 411, 422, 758 P.2d 1313, 1324 (Ariz. 1988)). E. STIPULATIONS AND UNCONTESTED FACTS 1. The following facts are admitted by the parties and require no proof: a) On February 7, 1990, defendant Provident Life issued a

disability income insurance policy, policy No. 06-337-4024986 ("the Policy"), to the plaintiff, Brett Leavey. b) Corporation. c) The Policy provides disability benefits if the insured meets Provident Life is a subsidiary of defendant UnumProvident

the definition of total disability in the Policy: Total disability or totally disabled means that due to Injuries or Sickness:

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(1)

you are not able to perform the substantial and

material duties of your occupation; and (2) you are receiving care by a Physician which is

appropriate for the condition causing the disability. We will waive this requirement when continued care would be of no benefit to you. d) e) Arizona. f) 14, 1998. g) Provident Life found that Leavey was eligible for benefits and Leavey applied for benefits under the Policy on November The Policy provided a monthly cash benefit of $3,960. Plaintiff Brett Leavey was a dentist licensed to practice in

began issuing payments on February 2, 1999. h) Leavey contends that thereafter Provident Life and

UnumProvident acted in bad faith in the handling of his claim. Provident Life and UnumProvident deny that they acted in bad faith. i) Leavey contends that he is disabled due to chemical

addiction, depression and anxiety. 2. The following facts, although not admitted, will not be contested at trial by evidence to the contrary: a) Provident Life has paid Leavey his benefits since February 2,

1999. Benefits were paid on a monthly basis through November 2001. Benefits for the period December 8, 2001 through June 8, 2002 were paid in a lump sum on December 4, 2001. Monthly payments resumed on July 8, 2002. b) By letter in December 2001 defendants informed plaintiff, in

part, that 'we regret to inform you that . . you do not qualify for continuing Total Disability benefits under the terms of your policy.'

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c)

Plaintiff filed this lawsuit against defendants in March of

CONTESTED ISSUES OF FACT AND LAW

Factual Issues Issue #1: Whether plaintiff can prove that defendants terminated plaintiff's disability insurance benefits, knowing that he was entitled to benefits under the terms of the policy. Plaintiff Contends: Defendants terminated plaintiff's benefits by advising him in writing in December 2001 that he was no longer entitled to benefits at the end of six months because, he would be able to return to work as a dentist. Defendants paid six months of benefits, closed the claim, released the reserve, and told plaintiff that he would have to begin making premiums payments again to keep his coverage in force. Defendants knew that plaintiff was entitled to benefits after the six month period and knew that it was wrong to terminate benefits and close the claim. Defendants' Rule 30(b)(6) designee (Greg Breter), their supervisor (Jeff Johnson), and their adjuster (Jennifer Conrad) all testified that it would have been inappropriate to close the claim in December 2001 because there was no factual basis to do so. Breter, as defendants' Rule 30(b)(6) designee, admitted that it would have been bad faith to close the claim. When confronted with proof that the claim was closed in December 2001, defendants testified that they "forgot" that they had closed the claim and "forgot" that they re-opened it after this lawsuit was filed in 2002. In previous testimony, defendants asserted unequivocally that the claim had not been closed and had a distinct memory of this and other aspects of the claim handling. Defendants' testimony that they forgot that the claim had been closed and reopened is not credible. Defendants Contend: To be totally disabled, not only must the policyholder be unable to perform the material and substantial duties of his occupation, but he also must be receiving appropriate care for the condition causing the disability. The plaintiff claimed that he was disabled from dentistry because of anxiety. Provident Life was
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concerned that he was not getting appropriate care for that condition. Accordingly, it sought to encourage him to get treatment, such as cognitive behavioral therapy or insight oriented therapy. Accordingly, Jennifer Conrad wrote him on December 4, 2001. In that letter, she provided him six months of benefits. She hoped this would allow him to get the appropriate care. She also offered to assist with paying for the care. Ms. Conrad has explained (as has Mr. Conrad) that they did not intend to foreclose future benefits beyond six months. Rather, they intended to revisit the situation when the next benefit payment would be due and pay benefits if the plaintiff was still totally disabled. That is what the company did. The plaintiff never missed a benefit payment. In July 2002, Provident Life resumed the monthly benefit payments to the plaintiff. Issue #2: Whether plaintiff can prove that defendants ever tried to impose on plaintiff a treatment plan contrary to the terms of the policy. Plaintiff Contends: Defendants admit that the own-occupation disability policy issued to plaintiff does not require that treatment be geared toward returning insureds to their occupation and that it would be inappropriate to take the position that it does. The first communication sent by defendants to their insured's treating physician in every ownoccupation disability claim (including plaintiff's treating physicians)is a form letter which tells the physician that their treatment must be geared toward returning the insured to his former occupation. It does not tell the physician that the policy requires only that treatment must be appropriate for the condition causing the disability. Defendants devised a treatment plan that was specifically designed to try to get plaintiff to return to dentistry. Defendants sought to get independent medical consultants to endorse the treatment plan. In the December 2001 letter to plaintiff, defendants advised plaintiff that he was no longer entitled to benefits after six months because their treatment plan would allow him to return to work as a dentist in six months. Defendants also wrote to plaintiff's treating physician, advising him that his treatment plan for plaintiff should include "specific treatment recommendations that are explicitly geared toward returning the insured to the work force."
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Defendants Contend: Defendants contend the policy requires that the plaintiff receive care "appropriate for the condition causing the disability." Provident Life had two independent medical examinations performed by both a psychiatrist and a psychologist. In follow up to those examinations, Provident Life inquired of these psychiatrists whether or not the plaintiff was receiving care appropriate for his anxiety (i.e., a condition that was causing his disability). The psychiatrist and psychologist responded by recommending an appropriate treatment plan. Provident Life did not try to impose this plan on the plaintiff. Rather, it believed that this treatment plan would benefit him. Accordingly, it provided these recommendations to his treating internist (the physician who signed his disability form). The Court's order dated March 29, 2005 (and filed March 31) specifically stated: "[T]he Court does not find clear and convincing evidence that Defendants misrepresented the terms of the Policy to Plaintiff or suggested to Plaintiff's doctor that Plaintiff's benefits would be terminated if his doctor did not gear Plaintiff's treatment toward returning him to the practice of dentistry." (21 lines 9-12) Issue #3: Whether plaintiff can prove that defendants resumed payment of benefits because they were sued for bad faith. Plaintiff Contends: Defendants terminated plaintiff's benefits, closed the claim, and released the reserves in December 2001. Plaintiff filed a bad faith lawsuit in March 2002. In a June 2002 letter, defendants advised plaintiff that it would reinstate benefits. The only event that occurred between the termination of benefits and the closing of the claim in December 2001 and the reinstatement of the claim in June 2002 was the filing of the bad faith lawsuit. Defendants Contend: As set forth in Issue #1, Provident Life did not foreclose the payment of benefits after six months. The plaintiff submitted documents including an attending physician statement in June 2002. These indicated that he was still totally disabled. Accordingly, Provident Life paid him the monthly benefit. Each month

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thereafter, the plaintiff and his treating physician have submitted a similar form. In response to these forms, Provident Life has paid the monthly benefit. Issue #4: Whether defendants letters to plaintiff's treating physicians which indicated that their treatment plan should include goals to assist plaintiff in returning to his occupation was part of a corporate plan by defendants to mislead their insureds and their insureds' physicians into believing that treatment must be geared toward returning the insured to his former occupation. Plaintiff Contends: Defendants admit that the own-occupation disability policy issued to plaintiff does not require that treatment be geared toward returning insureds to their occupation and that it would be inappropriate to take the position that it does. The first communication sent by defendants to their insured's treating physician in every ownoccupation disability claim (including plaintiff's treating physicians) is a form letter which tells the physician that their treatment must be geared toward returning the insured to his former occupation. It does not tell the physician that the policy requires only that treatment must be appropriate for the condition causing the disability. Defendants devised a treatment plan that was specifically designed to try to get plaintiff to return to dentistry. Defendants sought to get independent medical consultants to endorse the treatment plan. In the December 2001 letter to plaintiff, defendants advised plaintiff that he was no longer entitled to benefits after six months because their treatment plan would allow him to return to work as a dentist in six months. Defendants also wrote to plaintiff's treating physician, advising him that his treatment plan for plaintiff should include "specific treatment recommendations that are explicitly geared toward returning the insured to the work force." Defendants Contend: The disability policy required that the plaintiff be receiving care appropriate for the condition causing the disability. In its study of the plaintiff's condition and claim, Provident Life examined this issue. It did not require that the plaintiff's treatment be geared toward returning to work. Nor did it require that he receive care appropriate for the condition causing his disability. However, to the extent
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that the plaintiff did not receive care appropriate for the condition causing his disability, then he may not be entitled to further benefits. Issue #5: Whether defendants provided an accurate statement of plaintiff's illness to consulting physicians. Plaintiff Contends: Defendants' medical director and vice president, who is an advocate for returning insureds to their former occupations, provided a biased and slanted synopsis of plaintiff's medical records to independent medical consultants when he sought their opinions on whether plaintiff was able to practice as a dentist. Defendants' summary of the medical records left out facts that might have supported disability. Defendants Contend: There is no evidence that the examining physicians were denied access to any necessary information or pressured into reaching certain conclusions. In order to make certain that Leavey was receiving appropriate care for all of the conditions causing his disability, the defendants' medical director, Dr. Brown, requested that Dr. Stonnington, one of the examining physicians, identify a reasonable treatment program for Leavey's anxiety, which she admitted she "really hadn't addressed" in her initial report. Dr. Stonnington herself had some concerns about the "level of treatment that [Leavey] was getting for the anxiety," because regardless of whether he returned to dentistry or not, that condition "would need to be addressed," and Leavey "might have benefited from [treatment for his anxiety] beyond returning to dentistry." Dr. Stonnington testified that she did not believe that Dr. Brown had contacted her in an effort to pressure her to change her opinions or that he had manipulated her views in any way; instead, she felt that he needed more information regarding Leavey's anxiety, because she "had not been clear enough in [her] reports." Dr. Obitz, the other examining physician, agreed that Leavey's treatment had not focused on his anxiety, noting that "the fact that it's not there seems to be like a pretty big thing to be missing." And like Dr. Stonnington, she believed that Dr. Brown's follow-up regarding her evaluation was necessary to clarify portions of her report, not that he was
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trying to manipulate her. Finally, although Dr. Stonnington testified that she believed that Dr. Brown's initial summary of Leavey's disability included a "slanted version" of the facts, she met with Leavey and obtained a wealth of information from Provident's and Leavey's other doctors' files before completing her report. There is no indication that she relied solely on the summary in forming her opinions. Issue #6: Whether defendants accurately represented the opinions of the consulting physicians in correspondence to plaintiff and his physicians. Plaintiff Contends: An independent medical consultant advised defendants of the risks posed by defendants' "return to work" treatment plan and deemed it an experiment. She advised that the treatment would take twelve to fifteen months and may not be successful. Despite these reservations and projected timetable for the treatment, defendants told plaintiff and his treating doctor in December 2001 that the treatment would work and that it would take only six months. Defendants Contend: The December 4, 2001 letter to Leavey admittedly did not capture the entirety of Dr. Stonnington's or Dr. Obitz's opinions regarding their suggested treatment for Leavey's anxiety and the anticipated duration of such treatment, there is no indication that the failure to clarify those issues in that letter was motivated by spite or an evil mind. Indeed, Dr. Stonnington testified that the letter "reasonably summarize[d]" her concerns about Leavey's anxiety issues. Although she indicated that she did not intend to communicate to Dr. Brown that Leavey could return to work after six months of therapy, she also testified that she believed "that [Leavey] should be able to be more ready to return to work at six months.... [I]f he did that intensive treatment, he may have improved enough so that he might be able to approach some work-related activity." In light of the fact that even Dr. Stonnington could not clearly articulate her views regarding the therapy's likely success and necessary duration, Conrad's similar failure to communicate cannot form the basis for punitive damages.

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Issue #7: Whether the conduct in this case relates to a general corporate practice of the defendants. Plaintiff Contends: Provident aggressively marketed its own-occupation disability policies, winning the "market share battle," but it was slower than its competitors in "recogniz[ing] the deteriorating experience on this block of business in terms of taking early action." It began making claims decisions with an eye to insulating its bottom line from the financial drag that these policies exerted. Provident instituted a "[sea] change" in its philosophy for handling its own-occupation claims, treating claimants as business investments to be dealt with in whatever way maximized profits. It instituted "claims initiatives" to push for "intensive claim investigation," with specific pressure put on claims handlers in the psychiatric unit. Psychiatric claims were termed "grey area" claims, and handlers were told that "limitation on this claim type will have a significant impact on profitability." These new tactics were openly touted as being able to save the company between 30 and 60 million dollars a year "due to the significant financial leverage associated with individual disability claims." Dr. Feist, Provident's Medical Director for over fourteen years, explained how he observed his employer begin to put pressure to deny claims after 1993 when Harold Chandler became CEO. He testified that new programs such as "round table reviews" were designed to find ways to terminate high dollar claims. The executives in charge of implementing this scheme knew that it was improper to devalue their claimants' interests in this fashion, agreeing to "be careful in the words we use and the documentation developed during this project" and describing a practice as "unwise from a litigation standpoint." Provident implemented specific ambitious claim-closing goals called "net termination ratios" (terminated claims minus reopened claims divided by new claims). It also set financial goals for claim closures based on reserves. Setting these arbitrary claim-closing goals fostered the culture necessary for employees to close the requisite number of targeted claims. Among the most effective of the "claim management" initiatives were the Round Table Reviews.

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These claim-closing triumphs were tracked in regular reports that recounted quarterly success in cutting benefits to disabled claimants in the same manner in which a financial report might cover stock investments. By June 1995, Provident was celebrating $41 million of claim terminations for the previous month, and foreseeing a "good chance of meeting [its] goal of $132 million of terminations for the quarter." The next month, "[t]erminated claims reached a record level of $144.7 million ­ 25% above the previous four quarter average." The company's "claim improvement" scheme caused its "net termination ratio" to skyrocket from 47% in early 1995 to over 276% in 1997, meaning that hundreds of disabled insureds were denied the benefits they would have received, but for the defendants' improper practices. Provident reaped huge profits from its scheme. By October 1995, it had generated $99.8 million in "net terminations" in a single quarter. Defendants Contend: In arguing that the Defendants developed and maintained a corporate scheme to increase profit through the denial of valid claims, the plaintiff relies upon old documents and take those documents out of context. In fact, the level of claims paid remained consistent throughout the time period in which the plaintiff's claim has been pending. Issue #8: Whether plaintiff can prove that he was harmed by defendants' conduct. Plaintiff Contends: Upon receiving defendant's letter of December 2001, plaintiff began experiencing and will continue to experience, increased levels of anxiety, worry and stress, as well as incurring incidental expenses. Defendants Contend: Defendants deny that the plaintiff suffered harm because of the December 2001 letter. With that letter, he was provided six months of benefits. The company also offered to pay for any needed psychiatric/psychological treatment to address his anxiety. The plaintiff did not miss any further benefit payments. After six months, Provident Life resumed paying monthly benefits. It has done through this day. Issue #9: Whether plaintiff can prove by clear and convincing evidence that defendants consciously disregarded a known risk of harm to plaintiff.

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Plaintiff Contends: Defendants were aware that their proposed treatment plan was an experiment and that if it failed it could cause plaintiff more depression and anxiety and inability to function generally. Defendants knew that plaintiff was vulnerable and had talked of suicide. They were also aware of the risk that plaintiff may relapse into use of narcotics in the workplace if he tried to work as a dentist. Defendants nonetheless told plaintiff in the December 2001 termination letter that he was no longer entitled to benefits because their treatment plan would allow him to return to work as a dentist in six months. Defendants also wrote to plaintiff's treating physician advising him that his treatment plan should include "specific treatment recommendations that are explicitly geared toward returning the insured to the work force." Defendants also knew that the termination of benefits would cause plaintiff financial difficulties. Defendants acted to serve their own interest in corporate profitability while disregarding the substantial risk that their conduct might significantly injure plaintiff. Defendants Contend: Provident Life did not terminate the plaintiff's benefits in its December 4, 2001, letter. It provided him six months of benefits. It advised him of recommended treatment suggested by a psychiatrist and a psychologist. This did not pose a risk of harm to the plaintiff. Issue #10: Whether plaintiff can prove by clear and convincing evidence that defendants acted to serve their own interest while disregarding the substantial risk that their conduct might significantly injure plaintiff. Plaintiff Contends: Defendants were aware that their proposed treatment plan was an experiment and that if it failed it could cause plaintiff more depression and anxiety and inability to function generally. Defendants knew that plaintiff was vulnerable and had talked of suicide. They were also aware of the risk that plaintiff may relapse into use of narcotics in the workplace if he tried to work as a dentist. Defendants nonetheless told plaintiff in the December 2001 termination letter that he was no longer entitled to benefits because their treatment plan would allow him to return to work as a dentist in six months. Defendants also wrote to plaintiff's treating physician advising
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him that his treatment plan should include "specific treatment recommendations that are explicitly geared toward returning the insured to the work force." Defendants also knew that the termination of benefits would cause plaintiff financial difficulties. Defendants acted to serve their own interest in corporate profitability while disregarding the substantial risk that their conduct might significantly injure plaintiff. Defendants Contend: See Issue #9. Issue #11: Whether plaintiff can prove by clear and convincing evidence that defendants acted with an intent to harm plaintiff. Plaintiff Contends: Defendants were aware that their proposed treatment plan was an experiment and that if it failed it could cause plaintiff more depression and anxiety and inability to function generally. Defendants knew that plaintiff was vulnerable and had talked of suicide. They were also aware of the risk that plaintiff may relapse into use of narcotics in the workplace if he tried to work as a dentist. Defendants nonetheless told plaintiff in the December 2001 termination letter that he was no longer entitled to benefits because their treatment plan would allow him to return to work as a dentist in six months. Defendants also wrote to plaintiff's treating physician advising him that his treatment plan should include "specific treatment recommendations that are explicitly geared toward returning the insured to the work force." Defendants also knew that the termination of benefits would cause plaintiff financial difficulties. Defendants acted to serve their own interest in corporate profitability while disregarding the substantial risk that their conduct might significantly injure plaintiff. Defendants Contend: See Issue #9. Issue #12: Whether plaintiff can prove that he is not capable of returning to the practice of dentistry. Plaintiff Contends: Plaintiff will never be able to safely return to the practice of dentistry due to his history of depression, drug abuse, and anxiety associated with the practice.

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Defendants Contend: With appropriate care for the condition supposedly causing his disability, the plaintiff should be able to return to work ­ provided he wants to and is motivated to do so. Issue #13: Whether plaintiff can prove that defendant UnumProvident Corporation is liable for compensatory and punitive damages awarded to plaintiff as the joint venturer, alter ego, or agent of defendant Provident Life and Accident Insurance Company. Plaintiff Contends: UNUMProvident had a common purpose and equal voice in control of claims under Provident life and Accident policies. It was UNUMProvident and its employees that handled plaintiff's claim and the two companies would interchangeably use one another's name while handling the claim. Defendants Contend: UnumProvident and Provident Life are not joint venturers. UnumProvident is the parent corporation to Provident Life. They are separate corporate entities. Plaintiff's Additional Proposed Contested Issues of Fact Issue #14: Whether defendants intentionally withheld evidence that plaintiff's claim was closed and the reserves released in December 2001. Plaintiff Contends: Defendants refused to provide evidence that the reserve had been released in December 2001 despite a court order that the reserve information was discoverable to determine whether or not the claim had been closed in December 2001. Defendants maintained, including in sworn testimony, that the claim was not closed until confronted with the document that plaintiff discovered from another lawsuit which proved that the claim had been closed and the reserve released. Defendants Contend: See Defendants' discussion regarding Issue #1. Provident Life did not foreclose benefits after the sixth month. It sent the June 10, 2002, letter to inquire about the plaintiff's current status. In response, he advised that he was still totally

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disabled. Based upon this information and his treating physician's attending physician's statement, Provident Life paid the monthly benefit. Issue #15: Whether defendants tampered either with their computer system or the documents produced to plaintiff to hide the fact that plaintiff's claim had been closed in December 2001 and reopened in 2002 in order to again make benefits payments. Plaintiff Contends: When a claim is closed on defendants' computer system, it will show up on reporting screens as "closed," with the date of the closure and the person who closed it, and when it is reopened the system will show a reopen date, which remains in the system until the claim is closed again. Defendants produced the computer screens from plaintiff's file in July 2003 in response to a request for production. The claim status screens do not indicate that the claim was either closed or reopened even though the claim was closed on the computer system in December 2001. Defendants either altered information in the computer system and/or the printout document produced to plaintiff to hide the fact that plaintiff's claim had been closed in December 2001 and reopened in June 2002 in order to again make benefit payments. Defendants Contend: The Defendants dispute that this is an issue for the jury. Rather, this was the subject of a discovery dispute before the Court. The plaintiff misrepresented the history of this dispute. He requested the reserves on this file. In a telephonic hearing, the Court permitted limited discovery on whether the claims handlers knew about the reserves and took them into account. The witnesses subsequently testified that they were not aware of the reserves. Accordingly, the reserves did not need to be produced. Contrary to what the plaintiff alleges, the document that the plaintiff discovered in another lawsuit did not concern reserves per se. Rather, it showed that the plaintiff's claim had been closed on the Pace system. Despite the plaintiff's best effort to manufacture an issue on this point, there is no evidence that any PACE screens or documents have been tampered with. The PACE system shows current information only, not historical information, so that the screens

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produced during the litigation (that is, during a time the claim was open and being paid on a monthly basis), would not be expected to show a date of closure or a reopen date. Issue #16: Whether defendants destroys or conceals documentation of its round table review. Plaintiff Contends: Documentation of the round table review was also destroyed. The "round tables," begun in April 1995, were closed-door sessions at which a team of lawyers, doctors, and claims handlers collaborated to "triage" the company's most expensive claims. At these meetings, those handling these claims would describe them to the group and make recommendations as to how to "resolve" (i.e., close) them. Defendants covered their tracks by destroying the file review sheets that the "round table" meetings generated. Defendant's former medical director, Dr. William E. Feist, reveals that the purpose of roundtable reviews is to find ways to deny/terminate a claim. Defendants Contend: The Defendants dispute that this is an issue for the jury. Defendants deny they destroyed documents. If they did, it would be a discovery issue for the Court to address. As the plaintiff's counsel knows not only from this case but numerous other cases against the company, very little documentation is kept of roundtable meetings. The claims representative puts salient facts on an overhead transparency (much akin to a chalkboard). The case is discussed. The only notes that are taken are recommendations for claim handling. These are reflected in a management referral note. This management referral note is included in the claim file and was produced to the plaintiff. When the case discussion is over, the transparency is erased and the next case is put up on the screen. The Defendants did not destroy file review sheets. Issue #17: Whether defendants engaged in reserve manipulation in the handling of plaintiff's claim by opening the claim only long enough to issue the benefit check and then closing it again before having to post a reserve. Plaintiff Contends: Defendants engage in an improper method of paying claims in which the file is reopened for less than 24 hours to avoid posting a reserve on a case
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(called an "Open-Close"). If a claim is opened and closed again within 24 hours, the computer will not set the automatic reserve on that claim. Defendants admit that such a practice would be unlawful, and against industry standards. Defendant engaged in this practice in the handling of plaintiff's claim. Defendants Contend: The Defendants dispute that this is a proper issue for the jury. The plaintiff has never raised this issue before. There is no record evidence to support this allegation. Further, to the extent that the plaintiff's allegations were/are true, then this would be a regulatory issue for the Arizona Department of Insurance to address. The plaintiff does not have standing to raise this. Issue #18: Whether defendants ever indicated to plaintiff that they would not pay benefits in the future. Plaintiff Contends: Defendants advised plaintiff in December 2001 that he was no longer entitled to benefits after six months and would have to resume premium payments to keep the coverage in force. Defendants Contend: See Defendants' statement regarding Issue #1. Issue #19: Whether defendants misrepresented the denial and reinstatement of benefits in its June 2002 letter. Plaintiff Contends: Defendants' June 10, 2002 letter to plaintiff purported to be a "follow up" to the December 4, 2001 letter. The letter stated that Provident wanted to "revisit your status" and invited plaintiff to complete an enclosed progress form if he believed that he was still disabled. The letter does not acknowledge that the benefits had been terminated, that the claim closed, that plaintiff had not undergone the demanded medical treatment, or that plaintiff had filed a lawsuit alleging that defendants had acted in bad faith by wrongly terminating his benefits and wrongly insisting that he undergo treatment designed to try to get him to return to dentistry contrary to the recommendations of his treating physicians and contrary to the terms of the policy. Defendants Contend: See Defendants' discussion regarding Issue #1. Provident Life did not foreclose benefits after the sixth month. It sent the June 10, 2002, letter to
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inquire about the plaintiff's current status. In response, he advised that he was still totally disabled. Based upon this information and his treating physician's attending physician's statement, Provident Life paid the monthly benefit. 1. The following are the issues of law to be tried and determined:

Issue #1: Whether the defendants breached their duty of good faith and fair dealing under the insurance contract. Plaintiff Contends: The evidence will demonstrate defendants intentionally advanced payment and terminated plaintiff's disability claim without a reasonable basis and that defendants acted unreasonably in the investigation, evaluation and processing of plaintiff's claim. Defendants Contend: The plaintiff cannot carry his burden of proving that Provident Life either denied his claim without a reasonable basis or acted unreasonably in its investigation, evaluation, and processing of the claim. He also cannot prove that Provident Life either knew it was acting unreasonably or acted with sufficiently reckless disregard of the reasonableness of its conduct that knowledge can be imputed to it. Issue #2: Whether the plaintiff is entitled to punitive damages. Plaintiff Contends: The evidence will demonstrate defendants acted with both an intent to harm plaintiff and with conscious disregard of a substantial risk that their conduct might significantly harm others. Defendants Contend: In order to recover punitive damages, the plaintiff must prove more than the conduct required for the bad faith tort. The plaintiff must prove that the defendants acted with an "evil mind." The plaintiff's evidence, however, falls far short of this standard. G. LIST OF WITNESSES 1. a) Plaintiff's Witnesses:

The plaintiff shall call the following witnesses: Brett Leavey, c/o Dawson & Rosenthal, 6586 Hwy 179, Suite B-2, Sedona,

AZ 86351. Mr. Leavey will testify regarding his purchase of disability income insurance
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from Provident, his illness and resulting disability, his dealings with defendants and the damage he has suffered as a result of defendants' conduct. b) Carla Parkes, c/o Dawson & Rosenthal, 6586 Hwy 179, Suite B-2, Sedona,

AZ 86351. Ms. Parkes will testify regarding defendants' lack of disclosure and how defendants' internal document confirming Dr. Leavey's claim was closed was discovered. Objection: Untimely disclosure. Irrelevant and unfairly prejudicial under Rule 403. This was a discovery issue that the court has already addressed. It is not a proper issue for the jury. c) Mary Fuller, 32 Landing Woods Road, Yarmouth, Maine 04096 Ms.

Fuller will testify as an expert on disability insurance claims practices and specifically, defendants' practices, all as is more fully set out in her report and deposition. d) Mark Reiser, 11852 N. 91st Way, Scottsdale, AZ 85260 Mr. Reiser will

testify as an expert regarding the value of Dr. Leavey's disability insurance benefits. e) Daniel Hayes, c/o UnumProvident, Mr. Hayes will testify consistent with

his designated deposition testimony. f) Jennifer Conrad, c/o UnumProvident, Ms. Conrad will testify regarding her

handling of Dr. Leavey's claim and the defendants' procedures and practices. g) Brian Porter, c/o UnumProvident, Mr. Porter will testify regarding the

handling of Dr. Leavey's claim and defendants' general practices and procedures. h) Peter Brown, M.D., c/o UnumProvident, Dr. Brown will testify regarding

his participation in the administration of Dr. Leavey's claim and as to defendants' general practices. i) Jeff Johnson, c/o UnumProvident, Mr. Johnson will testify regarding the

handling of Dr. Leavey's claim and defendants' general practices and procedures. j) Greg Breter, c/o UnumProvident, Mr. Breter will testify regarding the

handling of Dr. Leavey's claim and defendants' general practices and procedures.

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k)

William Feist, M.D.,(address unkown) Dr. Feist will testify regarding

defendants' use of roundtable reviews and the shift in defendants' corporate culture toward a climate of looking for ways to deny or terminate claims. l) Stephen Rutledge, 127 Wachusett Street, Holden, Massachusetts 01520

Mr. Rutledge will testify regarding the problems incurred with own occupation disability income policies, the PACE system and defendants' tracking and reporting of net termination ratios and other related claim closure goals. The plaintiff may call the following witnesses: m) Eugene Almer, M.D., Scottsdale Psychiatric Service, 7432 E. Camelback

Road, Scottsdale, Arizona 85251 Dr. Almer will testify regarding Dr. Leavy's disability and his treatment of plaintiff, as well as his past dealings with defendants. n) John Curtin, M.D., 4855 E. Thomas Road, Phoenix, Arizona 85018 Dr.

Curtin will testify regarding his treatment of Dr. Leavey. o) Cynthia Stonnington, 300 W. Clarendon, Suite 140, Phoenix, Arizona

85013 Dr. Stonnington will testify regarding her examination of plaintiff and her interactions with defendants. p) Stephen Pitt, M.D., Dr. Pitt will testify regarding defendants' attempts to

influence an IME physician's opinions. Objection: Irrelevant and unfairly prejudicial under Rule 403. Dr. Pitt was a witness in separate, unrelated lawsuits against Paul Revere (a sister company to Provident Life). Allowing him to testify would necessitate rebuttal evidence and mini-trial within this trial. q) James Leavey, 1010 Clocktower, Springfield, Illinois 62704 Mr. Leavey

will testify regarding the sale of insurance to plaintiff and plaintiff's damages. r) Ralph Mohney, c/o UnumProvident, Mr. Mohney will testify regarding Joanne M. Ceimo, M.D., 10411 N. 48th Place, Paradise Valley, Arizona

defendants' internal documents and claims practices and procedures. s)

86253 Ms. Ceimo will testify regarding her treatment at the hands of defendants, including how she was finally placed on claim shortly before trial.

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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 v) u) t)

Objection: Irrelevant and unfairly prejudicial under Rule 403. Ms. Ceimo was the plaintiff in a separate, unrelated lawsuit against General American. Allowing her to testify would necessitate rebuttal evidence and mini-trial within this trial. Calvin Thur, 8170 N. 86th Place, Suite 100, Scottsdale, Arizona 85258 Mr.

Thur will testify regarding defendants' conduct in the Rosenberg case. Objection: Irrelevant and unfairly prejudicial under Rule 403. Mr. Thur is a lawyer who has handled lawsuits against these defendants. He is also the former law partner of plaintiff's counsel. Plaintiff is unlikely to call the following witnesses: Patrick Fergal McSharry, c/o Anita Hardeman, 713 Cherry Street,

Chattanooga, TN 37402 Dr. McSharry will testify concerning defendants' practice of using its medical consultants to assist in the denial/termination of legitimate disability claims and how the medical consultants have financial incentives to minimize the payment of disability claims. Objection: Irrelevant and unfairly prejudicial under Rule 403. Michael Sucher, M.D., c/o BODEX, 5060 N. 19th Avenue, Suite 406,

Phoenix, Arizona 85015 Mr. Sucher will testify regarding his evaluation of plaintiff. w) Jim Catlet, c/o UnumProvident, Mr. Catlet will testify regarding

defendants' claims practices and procedures. x) Joe Mauvais, c/o UnumProvident, Mr. Mauvais will testify regarding

defendants' claims practices and procedures. y) Lucilla Nash, c/o UnumProvident, Ms. Nash will testify regarding Julie Chapko, c/o BODEX, 5060 N. 19th Avenue, Suite 406, Phoenix,

defendants' claims practices and procedures. z)

Arizona 85015 Ms. Chapko will testify regarding the investigation and knowledge of BODEX's action regarding plaintiff.

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aa)

Larry Pozil, c/o BODEX, 5060 N. 19th Avenue, Suite 406, Phoenix,

Arizona 85015 Mr. Pozil will testify regarding the investigation and knowledge of BODEX's action regarding plaintiff. bb) Julie Lindstrom, c/o GENEX, 722 E. Osborn Road, Suite 310, Phoenix,

Arizona 85014 Ms. Lindstrom will testify regarding her report dated 2/22/00. cc) Kimberly Obitz, Ph.d., 500 W. Thomas Road, Suite 300, Phoenix, Arizona

85013 Dr. Obitz will testify regarding her evaluation and report concerning plaintiff. dd) Richard Freidman, 1126 Highland Avenue, Bremerton, Washington Mr.

Freidman will testify regarding Ceimo v. General American, et al. Objection: Irrelevant and unfairly prejudicial under Rule 403. Mr. Friedman is a lawyer who has handled lawsuits against these defendants. He has previously associated as counsel of record on cases with plaintiff's counsel. 2. Defendants' Witnesses

The defendants shall call the following witnesses: a) Greg Breter, c/o Lewis and Roca LLP, 40 North Central Avenue, Phoenix,

Arizona 85004-4429. Mr. Breter will testify concerning defendants' handling of plaintiff's claim and general practices. He will respond to the plaintiff's allegations of institutional misconduct. b) Dr. Peter Brown, Medical Director, c/o Lewis and Roca LLP, 40 North

Central Avenue, Phoenix, Arizona 85004-4429. Dr. Brown will testify regarding his review and analysis of plaintiff's claim and the concern over whether the plaintiff was receiving care appropriate for the condition causing the disability. c) Jennifer Conrad, Senior Customer Care Specialist, c/o Lewis and Roca

LLP, 40 North Central Avenue, Phoenix, Arizona 85004-4429. Ms. Conrad will testify regarding her handling of the plaintiff's claim. d) Daniel Hayes, Vice President, c/o Lewis and Roca LLP, 40 North Central

Avenue, Phoenix, Arizona 85004-4429. Mr. Hayes will testify about (1) the percentage
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of new individual disability claims that defendants pays each month; and (2) the percentage of open/pay individual disability claims that defendants continues to pay from month to month thereafter. e) Jeff Johnson, c/o Lewis and Roca LLP, 40 North Central Avenue, Phoenix,

Arizona 85004-4429. Mr. Johnson will testify regarding the defendants' handling of plaintiff's claim and their general practices of claim handling. f) g) Brett Leavey, Plaintiff. He will testify regarding his disability claim. David McPhee, Ph.D., 10407 N. Central Ave., Phoenix, AZ, 85202.

Dr. McPhee is an expert witness. He is a licensed psychologist who will testify consistent with his April 18 and 24, 2004 reports. h) Barry Morenz, M.D., College of Medicine, Department of Psychiatry,

University of Arizona, 1501 N. Campbell Ave., Tucson, AZ 85724. Dr. Morenz is an expert witness. He is an associate professor of clinical psychiatry at the University of Arizona medical school. He will testify consistent with his April 29, 2004 report. . i) Kimberly Obitz, Ph.D., Psychologist, 500 W. Thomas Road, Suite 300,

Phoenix, Arizona 85013. Dr. Obitz will testify regarding her June 19, 2001, independent psychological evaluation report regarding plaintiff. j) Dr. Cynthia Stonnington, Psychiatrist, 300 W. Clarendon, Suite 140,

Phoenix, Arizona 85013. Dr. Stonnington will testify regarding her November 29, 2001, independent psychiatric evaluation report regarding plaintiff. The defendants may call the following witnesses: k) Mary Desch, MD, 11333 N. Scottsdale Road, Suite 135, Scottsdale, AZ

85254. Dr. Desch will testify concerning her psychiatric treatment of plaintiff. l) Dr. David Goldsmith, Medical Director, c/o Lewis and Roca LLP, 40 North

Central Avenue, Phoenix, Arizona 85004-4429. Dr. Goldsmith will testify regarding his review of the plaintiff's disability claims and his analysis of it.

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m)

Jeff Mcall, Vice President of Training, Quality Assurance and Appeals, c/o

Lewis and Roca LLP, 40 North Central Avenue, Phoenix, Arizona 85004-4429. Mr. McCall will present information to rebut testimony by plaintiff's witness, Mary Fuller. n) Michel Sucher, MD, BOMEX, P.O. Box 2243, Scottsdale, AZ 85252. Dr.

Sucher will testify that despite Dr. Leavey's chemical dependency problem, he would be able to return to dentistry if he complied with the Board of Dental Examiners' requirements. o) Tawnia Newton, Vice President and Actuary, c/o Lewis and Roca LLP, 40

North Central Avenue, Phoenix, Arizona 85004-4429. Ms. Newton will offer testimony in rebuttal of the plaintiff's expert, Mark Reiser. Ms. Newton will testify regarding the net present value of plaintiff's benefits. The defendants are unlikely to call the following witnesses: p) Dr. Eugene Almer, 7432 E. Camelback Road, Scottsdale, Arizona 85253.

Dr. Almer is a psychiatrist and will testify regarding his treatment of plaintiff. q) Donald Boles, MD, 501 N. Washington, Chandler, AZ 85244. Dr. Boles

will testify concerning his treatment of plaintiff. r) Jim Catlet, Senior Clinical Consultant, Psychiatric Claim Unit, c/o Lewis

and Roca LLP, 40 North Central Avenue, Phoenix, AZ 85004-4429. Mr. Catlet will testify regarding his knowledge of plaintiff's claim s) Julie Chapko, Executive Director BODEX, 5060 N. 19 th Avenue, Suite 406,

Phoenix, Arizona 85015. Ms. Chapko will testify regarding her knowledge of the Board of Dental Examiners's action against Brett Leavey. t) Greg Crowe, Ph.D, 7510 E. Angus Drive, Scottsdale, AZ 85251. Dr.

Crowe will testify concerning his treatment of plaintiff. u) Dr. John Curtin, treating physician, 4855 E. Thomas Road, Phoenix,

Arizona 85018. Dr. Curtin will testify regarding his treatment of plaintiff. v) John Franz, CSAC, 501 N. Washington, Chandler, AZ 85244. Mr. Franz

will testify concerning his treatment of plaintiff.
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w)

Jacquelin Galbraith, Accucare Dental Human Resources Manager, 6865 E.

Becker Lane, Scottsdale, Arizona 85254. She will testify regarding plaintiff's employment with Accucare Dental. x) Brenda Garrett, RN, MC, 7530 E. Angus Drive, Scottsdale, AZ 85251. Ms.

Garrett will testify concerning her interaction with the plaintiff in the Monitored Aftercare Treatment Program. y) Julie Lindstrom, R.N., B.S., CCM medical case manager Genex Services,

722 E. Osborn Road, Suite 310, Phoenix, Arizona 85014. Ms. Lindstrom will testify regarding her February 22, 2000, report regarding plaintiff. z) Joe Mauvais, Field Consultant, c/o Lewis and Roca LLP, 40 North Central

Avenue, Phoenix, Arizona 85004-4429. Mr. Mauvais will testify regarding March 1, 1999 Field Referral Report regarding plaintiff. aa) Ralph Mohney, Senior Vice President of Return to Work Services, c/o

Lewis and Roca LLP, 40 North Central Avenue, Phoenix, Arizona 85004-4429. Mr. Mohney will present testimony to rebut information provided by plaintiff's witness, Mary Fuller. bb) Lucilla Nash, former employee, c/o Lewis and Roca LLP, 40 North

Central Avenue, Phoenix, Arizona 85004-4429. Ms. Nash will testify regarding her consultation on the plaintiff's disability claim. cc) Eugene Pardi, D.O., 4512 E. 40th Street, Phoenix, AZ 85018. Dr. Pardi

will testify concerning his treatment of plaintiff. dd) Brian Porter, Customer Care Representative, c/o Lewis and Roca LLP, 40

North Central Avenue, Phoenix, Arizona 85004-4429. Mr. Porter will testify regarding his involvement with plaintiff's claim ee) Larry Pozil, DDS, BODEX Chief Investigator, 5060 N. 19th Avenue, Suite

406, Phoenix, Arizona 85015. Mr. Pozil will testify regarding his investigation and knowledge of the Board of Dental Examiners's action regarding Brett Leavey.

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1

ff)

Nancy Rosenburgh, 7575 Earll Drive, Scottsdale, AZ 85251. Ms.

Rosenberg will testify concerning her treatment of plaintiff. gg) Robert Shapiro, MD, 7330 E. Earll Drive, Scottsdale, AZ 85251. Dr.

Shapiro will testify concerning his treatment of plaintiff. hh) Dianne Weisen-Todd, MC, 7330 E. Earll Drive, Scottsdale, AZ 85251. Ms.

Weisen-Todd will testify concerning her treatment of plaintiff. The parties understand that the Court has put them on notice that they are responsible for ensuring that the witnesses they want to put on the stand to testify are subpoenaed to testify, regardless of whether the intended witness is listed as a witness for the plaintiff(s) or the defendant(s). Simply because a party lists a witness does not mean that the witness will be called. Therefore, a party should not rely on the listing of a witness by the opposing party as an indication that the witness will be called. To the extent possible, the parties shall stipulate to the witnesses who will be called to testify. H. LIST OF EXHIBITS. 1. The parties intend to introduce the following exhibits. Objection1 No objection. No objection. The plaintiff contends that this file is relevant because of the policy data sheets

a) Plaintiff's Exhibits: Exhibit Description Number 1 Claim file PLACL00001-1061 2 Post litigation claim file PLACL001163-1062 3 Application file PLAAP00001-70

The defendants have one general objection. They maintain that admitting evidence of the their wealth would violate their due process rights under the Fourteenth Amendment to the United States Constitution and Article 2, Section 4 of the Arizona Constitution. But if this Court decides to admit such evidence, it is relevant only to punitive damages. This Court should not admit this evidence until after the Court has ruled on motions to dismiss at the close of plaintiff's case. The plaintiff objects to all objections that the defendants have raised for the first time in this document.
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and the material concerning waiver of premiums. Because the claim file adequately addresses these issues, the defendants object because the application file is duplicative (Rule 403). If the plaintiff attempts to use the application file for any other purpose, it is both duplicative and irrelevant. No objection.

Plaintiff's Disability Income Policy issued by defendants (policy no. 06-3374024986) The most recent financial statement for Relevance; Rule 403 Provident Life and Accident Insurance (unduly prejudicial) Company on file with the Arizona Department of Insurance Admission of evidence of the Defendants' wealth would violate their constitutional right to due process. 2001 Annual Statement to Shareholders, Was Ex. 141 UNUM/Provident Corporation Relevance; Rule 403 (unduly prejudicial) Admission of evidence of the Defendants' wealth would violate their constitutional right to due process. No objections.

10

The entire file of Cynthia Stonnington regarding plaintiff (STONNINGTON 000001-44) The entire file of Kimberly Obitz No objections. regarding plaintiff (OBITZ 000001-79) General Telephone Memo dated 7/25/97 Relevance; hearsay re: Raymond K. Banta, DDS (LEAVEY 000010) 6/10/02 letter from Jeff Johnson to Brett No objections. Leavey (LEAVEY 000011-12)
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11

12

13

8/7/01 letter from UNUM/Provident to Rosemary Wright (LEAVEY 00001316) 5/28/02 letter from Domenic J. Palleschi to Anita Rosenthal (LEAVEY 00001719) 3/17/02 letter from Judith Renihan to Anita Rosenthal (LEAVEY 000020-31) Records of American Community Insurance, MR00578-945

Relevance

14

Relevance; hearsay; Rule 403 (waste of time and unduly prejudicial) Relevance; hearsay; Rule 403 (waste of time and unduly prejudicial) The defendants originally designated this as an exhibit but were persuaded by the plaintiff's objections to it. Hearsay, timeliness, foundation, relevance and materiality, Rule 403, and the fact that the plaintiff objected to its use. Objection. This is being listed for the first time in the amended joint pretrial order. It is untimely. The plaintiff has failed to adequately specify which of the 464 pages he intends to introduce at trial. The defendants reserve all objections, and specifically those based on relevance; hearsay; foundation/authenticity; and Rule 403. The plaintiff has failed to adequately specify which of the 531 pages he intends to introduce at trial. The defendants reserve all objections, specifically those based on relevance
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15

PACE Mini Manual (PACE-MINI 00001-464)

16

Defendants' Claims manual that was in effect for 2001 (CM01 00001-531) [Previously listed as Defendants' Claims Manual that was in effect during the years 1998 through present ­ Ex. 17]
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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 25 26 27 23 24 22 21 20 19 1/21/04 letter from Cynthia M. Stonnington, M.D. to Barbara Leslie, including enclosures (STONNINGTON 000045-53 4/12/01 letter from Tina Feld to Larry Verhulst (LEAVEY 000032-35) 18 [Previously listed as Defendants' Claims Manual that was in effect during the years 1998 through present ­ Ex. 17] 17 Defendants' claims manual that was in effect for 2003 (CM03 00001-577)

and Rule 403. The plaintiff has failed to adequately specify which of the 577 pages he intends to introduce at trial. The defendants reserve all objections, and specifically those based on relevance and Rule 403. This is not a proper document for the jury to consider. This document relates to a discovery dispute. The Court already excluded this evidence in an order dated June 3, 2005 (and filed June 7). No objections.

Defendants' Response to Second Set of Non-Uniform Interrogatories, including the attached Verification, dated January 21, 2004.

Relevance; hearsay, Rule 403 (waste of time and unduly prejudicial) Additional records from Kimberly Obitz No objections. pertaining to plaintiff (OBITZ 00008096) Situation Analysis by T.B. Heys Relevance; Rule 403 (9/29/94) PROV 02086-02093 (waste of time and unduly prejudicial) Memorandum (1/13/95) To Tom Heys Relevance; Rule 403 From Tim Arnold PROV 02094-02100 (unduly prejudicial) Memorandum (5/22/95) to Harold Relevance; Rule 403 Chandler from Ralph Mohney PROV (unduly prejudicial) 02101 Memorandum from Ralph Mohney to Tom Heys (4/26/95) PROV 02103 Memorandum from Christopher Kinback to Ralph Mohney (4/25/95) PROV 02104-02110
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Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial)
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28 29

Individual Disability Claim Performance Objectives PROV 02113 Memorandum from Christopher Kinback to Ralph Mohney 10/3/97 PROV 02114-02122 Board of Directors Package PROV 02123-02142

30

Relevance; Rule 403 (unduly prejudicial and waste of time) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial and waste of time) Admission of evidence of the Defendants' wealth would violate their constitutional right to due process. Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial)
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32

33

34

35

36

37 38 39

40

41

Memorandum from Tom Heys to Harold Chandler (12/19/96) PROV 02143-02148 Memorandum from Tom Heys to Harold Chandler (11/19/96) PROV 02149-02151 Memorandum from Tom Heys to Harold Chandler (9/17/96) PROV 02152-02154 Memorandum from Tom Heys to Harold Chandler (6/27/96) PROV 02155-02157 Memorandum from Tom Heys to Harold Chandler (5/24/96) PROV 02158-02166 Memorandum (3/18/96) from Tom Heys to Harold Chandler PROV 02167-02172 Memorandum (2/14/96) PROV 0217302178 Memorandum from Tom Heys to Harold Chandler (11/14/95) PROV 02179-02181 Memorandum From Tom Heys to Harold Chandler (10/10/95) PROV 02182-02188 Memorandum (6/15/95) from Tom Heys to Harold Chandler PROV 02189
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42

43

44 45

46

47

48

49

50

51 52

53

54 55 56 57

Memorandum from Tom Heys to Harold Chandler (6/12/95) PROV 02190-02191 Memorandum from Tom Heys to Harold Chandler (8/9/95) PROV 0219202194 Memorandum From Rick Magro to Tom Heys (8/7/95) PROV 02195-02196 Memorandum from Tom Heys to Harold Chandler (7/10/95) PROV 02197-02200 Memorandum from Tom Heys to Harold Chandler (6/9/95) PROV 022012206 Memorandum from Tom Heys to Harold Chandler (10/18/97) PROV 02207-02210 Memorandum from Tom Heys to Harold Chandler (8/27/97) PROV 02211-02220 Memorandum from Tom Heys to Harold Chandler (7/30/97) PROV 02221-02224 Memorandum from Tom Heys to Harold Chandler (6/18/97) PROV 02225-02240 Memorandum fr: Tom Heys to Harold Chandler (4/25/97) PROV 02241-02245 Memorandum from Tom Heys to Harold Chandler (2/19/97) PROV 02246-2249 Memorandum from Ralph Mohney to Tom Heys (1/31/97) PROV 0225002269 Memorandum to Tom Heys from Ralph Mohney (2/20/97) PROV 02270-02285 Memorandum from Ralph Mohney to Tom Heys (3/21/97) PROV 02286-2299 Memorandum from Ralph Mohney to Tom Heys (4/21/97) PROV 02300-2314 Memorandum from Ralph Mohney to Tom Heys (5/21/97) PROV 0231502334
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Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (unduly prejudicial) Relevance; Rule 403 (un