Opinion
Case No. 8:01-CV-452
December 10, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the following motions: the Motion for Partial Summary Judgment (Filing No. 27) filed by the Plaintiff, Patti L. Butts; the Motion for Summary Judgment (Filing No. 31) filed by the Defendant, Continental Casualty Company ("Continental"); and the Motion for Summary Judgment (Filing No. 32) filed by the Defendant, Michael Foods, Inc. ("Michael Foods"). The Court has considered the evidence submitted by Butts (Filing Nos. 28, 37) and by the Defendants (Filing Nos. 33, 34, 35). The Court has also considered the submitted briefs.
FACTUAL BACKGROUND
This matter arises out of a denial of benefits under a long term disability insurance policy purchased by Michael Foods from Continental for coverage of its employees, including Butts. (Filing Nos. 1, 4.) On June 25, 2000, Butts underwent surgery for a condition known as Type II sphincter of Oddi dysfunction. (Filing No. 1.) As a result of the surgery, Butts alleges that she suffered a perforation of the duodenum, which in turn resulted in a retroperitoneal abscess. In light of this complication, Butts alleges that she required additional surgery. (Filing No. 1.) Butts applied for the payment of long term disability benefits under the long term disability plan offered through her employer, Michael Foods. (Filing Nos. 1, 4.)
The plan provides the following in relevant part:
ELIMINATION PERIOD
180 days
YOUR OCCUPATION PERIOD
24 months
. . . .
"Disability" means Total Disability, Partial Disability or Rehabilitative Employment.
"Elimination Period" means the number of days at the beginning of a continuous period of Disability for which no benefits are payable.
. . . .
"Total Disability" means that, during the Elimination Period and Your Occupation Period shown in the Schedule of Benefits, You, because of Injury or Sickness, are:
(1) continuously unable perform the substantial and material duties of Your regular occupation;
(2) under the regular care of a licensed physician other than Yourself; and
(3) not gainfully employed in any occupation for which You are or become qualified by education, training or experience.
. . . .
LONG TERM DISABILITY BENEFITS
TOTAL DISABILITY BENEFIT. We will pay the Monthly Benefit for each month of Total Disability which continues after the Elimination Period. The Monthly Benefit will not be payable during the Elimination Period nor beyond the Maximum Period Payable.
(Filing No. 33, at 140, 142, 144.)
On January 25, 2001, CNA Group Benefits ("CNA") denied Butts' claim initially after a review of the claim file. Continental determined that Butts was unable to work from June 25, 2000 (five days before her surgery for a perforated duodenum), through October 25, 2000 (the last day she participated in post-operative physical therapy). (Filing No. 33, at 30.) Finding that the final portion of the 180-day elimination period from October 26, 2000, to December 24, 2000, was not met, the denial notice included the following language:
The record does not define the relationship between CNA and Continental. The two entities appear to be related, however, as the parties refer to Continental's denial of Butts' benefits. Further references to the decision-making entity will be to Continental.
In regards to the period beyond October 25, 2000, medical evidence does not support loss of function significant enough to prevent you from continuously performing the substantial and material duties of your regular occupation. On October 6, 2000, you had a negative small bowel series. On December 4, 2000, ERCP ducts were essentially normal, a stent placement was done. On January 11, 2001, your EGD was normal. On January 12, 2001, you had a GI/UGI double contrast which revealed a small sliding hiatal hernia and possible antral gastritis, no reflux. Also, your small bowel fluoroscopy was essentially negative. The cat scan of your abdomen and pelvis revealed colonic diverticulosis, no abscess or mass, gas emptying test was normal, delayed small intestinal transit was indicated, however significance was not specified. Consequently, you do not meet the requirements for disability under the provisions of the policy.
(Filing No. 33, at 31.)
Butts appealed the decision. On April 19, 2001, the appeals committee rendered its decision upholding the denial of benefits in a letter addressed to Terry Salerno, Butts' attorney:
The review of this file confirms that your client last worked as a Poultry Housekeeper on June 24, 2000. This occupation consisted of standing/walking up to 4 hours each, lifting up to 2 pounds, carrying up to 10 pounds and pushing/pulling up to 30 pounds. The medical records do not substantiate your client's inability to perform her occupation beyond the elimination period. We have not received any updated information that would allow a reversal of that decision rendered on January 25, 2001. Please reference the denial for information not repeated at this time.
The initial Attending Physician's Statement completed by Dr. Trail indicates your client was being treated for sphincter of oddi type III dysfunction and retro-peritoneal abscess with symptoms of back and abdominal pain. We have already advised that as of October 25, 2000, your client was capable of performing her own occupation without restrictions. The additional information indicates that when hospitalized on December 4, 2000, by Dr. Kolara due to abdominal pain your client underwent an ERCP with manometry. It is noted that your client did well overnight with minimal pain. Upon release no ongoing therapy was recommended or intervention required due to pain. Your client was functional at discharge and released without any restrictions.
The March 9, 2001, report from Dr. Trail indicates that on February 27, 2001, your client underwent exploratory surgery due to her difficulty with eating, keeping foods down and severe abdominal pain. The adhesions found during surgery were thought to be the cause of your client's condition, however the fact remains that your client was not unable to return to her occupation based on the medical records prior to the end of the elimination period on December 24, 2000. It is noted that although Ms. Butts may have had continued problems, there were no restrictions placed upon your client due to her pain nor were any restrictions warranted based on the findings.
Please be advised that verification a medical condition exists does not confirm an inability to perform the duties of a person's own occupation. Your client may experience some problems associated with her pain, however the medical evidence fails to substantiate a condition that would have prevented returning to work in her previous occupation with any employer.
(Filing No. 33, at 18-19.)
Butts' complaint is brought pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001-1461. The parties agree that Butts was a participant in the Group Long Term Disability Insurance Plan designed for employees of Michael Foods, Inc., Class 1. The advice of ERISA rights accompanying the plan states the following regarding administration of the plan:
Administration of Plan
The Plan is administered by the Plan Administrator through an insurance contract purchased from Continental Casualty Company.
Plan Administrator
Michael Foods, Inc.
[address]
Hereinafter referred to as the Administrator. The Administrator and other Plan fiduciaries have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to benefits in accordance with the Plan.
(Filing No. 33, at 155-56.)
Continental has moved for summary judgment, alleging that Butts was able to perform her former job of poultry housekeeper during the latter portion of the 180-day elimination period from October 26, 2000, through December 24, 2000. Michael Foods has moved for summary judgment, alleging that it is an improper party and should be dismissed because all decision-making authority under the plan was exercised by Continental. Butts has moved for partial summary judgment on the issue of liability, reserving the issue of damages.
DISCUSSION Summary Judgment Standard
The summary judgment standard applicable to ERISA claims is identical to the standard applied to any other summary judgment motion:
"A court considering a motion for summary judgment must view all facts in the light most favorable to the non-moving party and give to the non-moving party the benefit of all reasonable inferences that can be drawn from the facts. [citation omitted] While a party is entitled to summary judgment if `there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law,' . . . summary judgment is inappropriate when the record permits reasonable minds to draw conflicting inferences about a material fact.Riedl v. General Am. Life Ins. Co., 248 F.3d 753, 756-57 (8th Cir. 2001) (quoting Donaho v. FMC Corp., 74 F.3d 894, 897-98 (8th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986))).
Standard of Review
Butts and Continental urge the Court to apply different standards of review in considering the decision to deny benefits. Continental maintains that the Court must apply an "arbitrary and capricious" standard, referred to by the Eighth Circuit Court as an "abuse of discretion" standard. Brief in Support of Defendant Continental's Motion for Summary Judgment at 4-5. Under this standard, the Court allows great deference to the prior decision, and that determination must be upheld if it is reasonable. Donaho, 74 F.3d at 900 n. 11.
Butts, however, argues that the Court should employ a less deferential standard of review. Brief in Support of Plaintiff's Motion for Partial Summary Judgment at 16. Butts argues that the less-deferential standard of review is warranted due to serious procedural irregularities.
The United States Supreme Court has considered the applicable standard of review in cases involving challenges to the denial of benefits under ERISA. In the landmark case of Firestone Tire Rubber Co., v. Bruch, 489 U.S. 101 (1989), the Supreme Court stated that the determination of the applicable standard of review is based on whether the language of the plan itself provides a clear delegation of discretionary authority to the plan administrator to determine eligibility for benefits or to construe the terms of the plan. Firestone directs that, in the absence of a clear delegation of discretionary authority to the plan administrator, courts should apply a de novo standard of review. On the other hand, if a plan provides a clear delegation of discretionary authority to the plan administrator, then courts should apply the more deferential "arbitrary and capricious" standard. Drawing on the common law of trusts, the Firestone Court determined that the more deferential standard of review is appropriate when discretion is expressly conferred in the plan upon an administrator or fiduciary. Id. at 111. As an initial inquiry then, this Court must determine whether the language of the Michael Foods plan clearly delegates discretionary authority to the plan administrator or fiduciary.
A copy of the plan was provided. (Filing No. 33, at 135-77.) The Court has reviewed the plan, including in particular the sections relating to the delegation of authority. The plan states that Michael Foods is the administrator. The plan places discretionary authority in the administrator and "other Plan fiduciaries" to interpret the plan and determine eligibility for benefits under the plan. (Filing No. 33, at 155-56.) However, it is unclear whether there are "other Plan fiduciaries" in addition to the plan administrator who owe duties to the plan beneficiaries and, if so, the identity of those fiduciaries. (Filing No. 33, at 156.) The plan does not define the term "fiduciaries." (Filing No. 33, at 142-44, 154-59.)
The Court finds, therefore, that although the plan communicates an intent to confer discretionary authority, the plan lacks clarity as to whom the authority is conferred. Certainly, the plan confers discretionary authority upon the plan administrator. However, the plan is ambiguous regarding the existence and identity of any "other Plan fiduciaries." Therefore, this Court does not know whether the plan administrator is Michael Foods or some other entity which functions as a "Plan fiduciary." For this reason, the Court concludes that the plan does not contain a clear delegation of discretionary authority. Thus, the Court finds that a de novo review of this matter is appropriate. See Ravenscraft v. Hy-Vee Employee Ben. Plan Trust, 85 F.3d 398, 402-03 (8th Cir. 1996) (finding no plan provision conferring discretionary authority to decide benefit claims, and noting that "the claim and benefit provisions read like a typical insurance policy, which is not surprising since the Plan Administrator is an insurance company"); Binder v. Pitney Bowes, Inc., No. 8:00CV488, at 7 (D.Neb. July 15, 2002) (applying a de novo standard of review in an ERISA case, where the plan did not include a clear delegation of discretionary authority to a particular administrator).
Under ERISA, "[t]he instrument under which a plan is maintained may expressly provide for procedures (A) for allocating fiduciary responsibilities (other than trustee responsibilities) among named fiduciaries." 29 U.S.C. § 1105(c)(1) (emphasis added).
The Eighth Circuit has found appropriate delegations of discretionary authority when the plan language is clear. Compare the language in the plan in this case to the plan language set forth in Sahulka v. Lucent Technologies, Inc., 206 F.3d 763 (8th Cir. 2000):
The pertinent part of the Plan giving the [Employee Benefits Committee] final and discretionary authority to determine eligibility for benefits is as follows: The [EBC] shall be the final review committee under the Plan, with the authority to determine conclusively for all parties any and all questions arising from the administration of the Plan, and shall have sole and complete discretionary authority and control to manage the operation and administration of the Plan, including, but not limited to, the determination of all questions relating to eligibility for participation and benefits, interpretation of all Plan provisions, determination of the amount and kind of benefits payable to any participant, spouse or beneficiary, and construction of disputed or doubtful terms. Such decisions shall be conclusive and binding on all parties and not subject to further review.Id. at 767 n. 8.
The Court also notes that a less deferential standard of review also appears appropriate in light of a potential conflict of interest. In Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998), the Eighth Circuit stated that in order to obtain a less deferential standard of review, Woo must present "material, probative evidence demonstrating that (1) a palpable conflict of interest or a serious procedural irregularity existed, which (2) caused a serious breach of the plan administrator's fiduciary duty." Id. at 1160. The second prong of the test is met where it is shown that "the conflict or procedural irregularity has `some connection to the substantive decision reached.'" Id. (quoting Buttram v. Central States, S.E. S.W. Areas Health Welfare Fund, 76 F.3d 896, 901 (8th Cir. 1996)). In Woo, the court found that the test was met where the insurance company also served as the plan administrator, indicative of a financial conflict. The court also considered the denial of the claim without seeking any independent medical review. Under these facts, the court found a sufficient connection between the financial conflict and the denial of benefits to trigger a less deferential review. Id. at 1161. Applying Woo, the Court finds that Continental, the insurance company, was the entity which handled the day-to-day administration of the plan and denied the claim and the appeal. Therefore, there exists at the very least an appearance of a potential financial conflict, as Continental receives a financial benefit in denying a claim. Moreover, Continental denied benefits without securing an independent medical review of Butts' file by a licensed physician. These facts are similar to those presented in Woo and therefore support the application of a less deferential standard of review. See id.
In applying a de novo standard of review, the district court is not limited to the explanation of the denial of benefits. The Court must consider all applicable plan provisions alleged to form a basis for denial of benefits. See Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 660 (8th Cir. 1992). If necessary to ensure an adequate de novo review, the Court may also receive evidence in addition to that presented to the plan administrator. However, to ensure expeditious judicial review of ERISA benefits decisions and to keep district courts from becoming substitute plan administrators, the district court should not consider additional evidence without "good cause." Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993). The Court finds that good cause exists in this case to consider the additional evidentiary materials submitted.
Merits
There has been no challenge to the interpretation of the substantive plan language as it relates to the issue of total disability within the 180-day elimination period. Therefore, the Court shall consider whether Butts was unable to perform her former job during the latter portion of the elimination period from October 26, 2000, through December 24, 2000. The evidence includes an Affidavit with attachments from Butts' treating physician, Kynan Trail, M.D. (Filing No. 28, 134-35 Attachments 1, 2.) Butts asks the Court to consider Dr. Trail's opinions contained in the Affidavit and attached letters. Butts argues that Continental's initial decision included no reason for the denial of benefits, which disadvantaged her in the appeal process. Butts argues that Dr. Trail's opinions should be considered as relevant to this Court's decision. As Butts' treating physician, Dr. Trail's opinion is entitled to greater deference than the opinion of a reviewing physician. Donaho, 74 F.3d at 901; Dodson v. Woodmen of the World Life Ins. Co., 109 F.3d 436, 439 (8th Cir. 1997). Dr. Trail stated the following opinion in his July 29, 2002, Affidavit:
The Eighth Circuit has employed a five-factor test to determine whether the interpretation of plan language is reasonable:
1) whether [the Defendants'] interpretation is consistent with the goals of the Plan; 2) whether the interpretation renders any language in the Plan meaningless or internally inconsistent; 3) whether [the Defendants'] interpretation conflicts with the substantive or procedural requirements of the ERISA statute; 4) whether the [Defendants have] interpreted the relevant terms consistently; and 5) whether the interpretation is contrary to the clear language of the Plan.Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir. 1997) (citing Finley v. Special Agents Mut. Benefit Ass'n, 957 F.2d 617, 621 (8th Cir. 1992)).
While Butts has not argued that the interpretation is unreasonable, the Court has considered these factors and finds that the interpretation of the substantive plan language relating to total disability and the elimination period is reasonable under the five Finley factors.
3. That I was the author of a letter dated February 19, 2001, and a letter dated March 9, 2001, marked herein as Attachments 1 and 2 respectively, wherein I set forth the fact that Patti Butts has been a patient of mine since July of 2000 and continuously thereafter until the dates of those letter [sic].
4. That I have continued to provide care and treatment for Patti Butts since the dates of the letters due to problems that were referred to in the letters of February 19, 2001, and March 9, 2001.
5. That I still hold to the opinions set forth in Attachments 1 and 2 that Patti Butts has been unable to return to gainful employment as a result of complications that arose form a surgery that occurred in July of 2000.
6. That at the present time I am uncertain when Patti will be unable [sic] to return to gainful employment, if at all.
(Filing No. 28, at 134-35.)
Dr. Trail's letter dated February 19, 2001, states:
I am writing to you concerning Patti Butts. She has now been in my care since the end of June. It has been now 8 months since her initial surgery when I drained a retroperitoneal abscess. She has been in a debilitated state since that time. I do not feel that she could be gainfully employed in her current condition. She has severe painful attacks, which would make it difficult for her to carry on job related responsibilities. She has had an extensive workup by her physicians in Sioux Falls, the Mayo Clinic and by myself. At this point she is still symptomatic and we are continuing to try to help her anyway [sic] we can. Currently, I feel that she is unable to work in the job setting.
(Filing No. 28, at 134-35, Attachment 1.)
Dr. Trail's March 9, 2001 letter described the surgery in some detail, and Dr. Trail concluded:
I feel very positive about the result of her surgery. She is to follow-up [sic] with me in the next week and we will discuses [sic] her returning to work in the near future. I feel that she will be able to be gainfully employed, once her hip pain is resolved. She will be starting physical therapy in the near future to aid in her recovery.
(Filing No. 28, at 134-35, Attachment 2.)
The evidence also includes the second page of a report from Dr. Trail dated December 4, 2000. The report states that he did "not anticipate prolonged protracted course. Should be able to return to work again. May return to work once cleared by Physical Therapy @ Mayo Clinic." (Filing No. 33, at 84-85.) It is unclear whether page one of the report is in the evidentiary record presented to the Court or, if so, the location of the first page within the record. (Filing No. 33, at 84.)
Butts' evidence also includes an Affidavit of Gloria Tighe, the personnel supervisor for M.G. Waldbaum Company who knew Butts and her job at the company. Ms. Tighe testified that she saw Butts in the hospital at some unspecified time after her July 2000 surgery. Ms. Tighe opined that "there was no way that [Butts] could have walked up and down the aisles in the poultry house and pulled dead birds and climbed up and down ladders and performed the duties that were part of her job description." (Filing No. 28, at 136-37.)
While the record fails to explain the relationship between Michael Foods and M.G. Waldbaum Company, the Plaintiff's Brief in support of her motion explains that Michael Foods was doing business as the M.G. Waldbaum Company. Brief in Support of Plaintiff's Motion for Partial Summary Judgment at 9.
Butts included her own Affidavit, in which she stated that until June 24, 2000, she worked for the M.G. Waldbaum Company as a poultry house person responsible for maintaining a poultry house. She stated that she performed tasks such as climbing ladders, lifting and carrying dead chickens, and using a wheelbarrow. Butts testified that on July 10, 2000, she had surgery and was discharged on July 11, 2000. She described resulting complications as a perforation of the duodenum and an abdominal abscess that required another hospitalization and surgery. Butts summarized her medical situation as follows:
4. That since July, 2000, I have had to undergo numerous medical procedures in an attempt to address the continuing pain and problems that have occurred since July, 2000. I have been placed on antibiotics for weeks at a time; I was sent to the Mayo Clinic for additional evaluation; I have undergone laparoscopic procedures in the hope that it would correct whatever has been the source of my ongoing pain, spasm and discomfort.
. . . .
6. That because of the continuing physical pain and problems I have been unable to return to my job or to perform any job outside the home since being discharged from the hospital on July 11, 2000.
(Filing No. 28, at 139.)
During a December 26, 2000, claimant interview, Butts stated that she was not feeling well, that she slept in a recliner due to pain when she slept in a bed, that she woke frequently, that she had poor eating habits, and that she dressed herself by leaning against a wall. (Filing No. 33, at 79.)
The claim file also includes a report of Todd Baron, M.D., of the Mayo Clinic in Rochester, Minnesota. Dr. Baron evaluated Butts on December 4, 2000, noting that she was in "no acute distress" and had "no abdominal tenderness or mass." (Filing No. 33, at 67.) Dr. Baron's impressions were:
There is reasonable data to suggest that the pancreatic duct sphincter hypertension also needs to be addressed with a repeat ERCP and pancreatic manometry. The risks of proceeding with an ERCP and the manometry were discussed and specifically the risk of sedation, bleeding, perforation, pancreatitis, infection were discussed with the patient. I also mentioned that based on the data that I though [sic] it was probably better than a 50 percent chance that the patient would response [sic] to a pancreatic sphincterotomy if her pancreatic sphincter pressures were high and that some of her symptoms such as abnormal bowel habits could not be completely ascribed to pancreatic or billary sphincter of Oddi dysfunction. . . . The patient agrees to proceed in this direction.
#1 Post cholecystectomy abdominal pain
#2 Previous history of sphincter of Oddi dysfunction, status post billary sphincterotomy
#3 Previous history of perforated duodenum
PLAN:
We will proceed with sphincter of Oddi manometry of the pancreatic duct today and will proceed to pancreatic sphincterotomy if the pancreatic pressures are high. If the pressures are normal then I would not recommend a sphincterotomy and would recommend she be seen in our general GI clinic and a consideration be made for pain management.
(Filing No. 33, at 67-68.)
Pursuant to Dr. Baron's recommendation, Butts was admitted to the hospital for the procedure on December 4, 2000, and was kept for observation until December 5, 2000. (Filing No. 33, at 79.) Butts had minimal pain after the procedure, was stable for dismissal, was able to resume a normal diet, and was discharged with "no emergency condition" and no restrictions. No therapy was recommended, and "[n]o further intervention [was] necessary" for Butts' abdominal pain and sphincter of Oddi dysfunction. It was recommended that Butts contact Dr. Baron's office in two weeks to report her status and discuss further evaluation. (Filing No. 33, at 70.)
Finally, the record includes evidence that the Social Security Administration found Butts disabled as of June 25, 2000. (Filing No. 28, at 16.) However, a social security award of benefits has been found to be irrelevant to a claim for long term benefits under an ERISA plan where the plan does not refer to a claimant's eligibility for social security benefits. Conley v. Pitney Bowes, 176 F.3d 1044, 1050 (8th Cir. 1999).
The Court has carefully reviewed all of the evidence submitted. The record, in its entirety, provides ample evidence to affirm the denial of benefits. As a treating physician, Dr. Trail's opinion is entitled to more weight that the opinions of reviewing or consultative physicians. However, Dr. Trail's opinion alone is not dispositive. The record must be viewed as a whole. Jackson v. Metropolitan Life Ins. Co., 303 F.3d 884, 888 (8th Cir. 2002); Conley, 176 F.3d at 1049. No other medical evidence corroborates Dr. Trail's opinion and supports Butts' contention that she was unable to work at her former job throughout the elimination period. Dr. Trail's letter of December 4, 2000, indicates that Butts could return to work when cleared to do so by the Mayo Clinic. On December 5, 2000, Butts was discharged from the Mayo Clinic with "no restrictions."
Based on the record as a whole, the Court concludes that the denial of benefits was proper, because Butts was able to return to work during the plan's elimination period. Butts has failed to raise a genuine issue of material fact indicating her inability to return to her former position during the latter portion of the period of elimination, specifically after December 5, 2000, and through December 24, 2000. Accordingly, the Defendants' motions for summary judgment will be granted, and the Plaintiff's motion for partial summary judgment will be denied.
Page 1 Sanctions
On June 11, 2002, the Magistrate Judge entered an order granting in part Butts' motion to compel. The Magistrate Judge ordered that, on or before June 24, 2002, the "defendant" was to serve an amended answer to Interrogatory No. 23 and an amended response to Request for Admission No. 3. (Filing No. 26.) In discussing the interrogatory in their briefs the parties discuss the Defendants' failure to serve an amended answer to Interrogatory No. 3, as opposed to No. 23. Because of the lack of clarity in the record, the Court will not address the issue of sanctions as they relate to the interrogatory.
While the discovery requests were served on both Defendants (Filing No 19, Exhibits C and D), the Magistrate Judge orders the "defendant" to serve amended answers and responses. From the record as a whole, the Court assumes that the discovery issue relates to both Defendants.
Request for Admission No. 3 asked for an amended admission or denial of the statement that Butts has not been employed since June 25, 2000. The request also asked for details regarding any occupation for which "the Defendant" contends that Butts was qualified by education, training or experience and for which a position was available in Wausa, Nebraska. The Defendants represented that they provided the prior response as follows: "Defendants have no knowledge of the Plaintiff working anywhere during the period in question, but are unable to admit or deny this Request after making a reasonable inquiry, because the information known or readily obtainable by the defendants is insufficient to enable the defendants to admit or deny." Defendants' Brief in Opposition to Plaintiff's Partial Motion for Summary Judgment at 6.
Butts now asks the Court to award sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) and (B) for this failure, precluding the Defendants from introducing evidence relating to the issue of Butts' ability to work during the elimination period and establishing as a matter of law that Butts met the policy provision that she was continuously unable to perform the substantial and material duties of her regular occupation and was not gainfully employed in any occupation for which she was qualified. Plaintiff's Brief in Support of Motion for Partial Summary Judgment at 23-24.
The record includes an Affidavit of Scott Lautenbaugh, counsel for the Defendants. (Filing No. 35.) Lautenbaugh stated that during the last week of July 2002, he told Butts' counsel that the insurance adjuster responsible for this matter had been on medical leave with a life-threatening illness, and as a result, Lautenbaugh had not been able to obtain verified supplemental discovery requests or approval for a summary judgment motion. (Filing No. 35, ¶ 1.) Lautenbaugh testified that Butts' counsel agreed to the continuance, yet stated that Butts would file her motion for summary judgment in late July. Butts did so, including her request for Rule 37 sanctions. (Filing No. 35, ¶ 3.) Lautenbaugh then stated that he erroneously calendared the deadline for the discovery supplementation as July 24, 2002, rather than June 24, 2002. (Filing No. 35, ¶ 4.) Lautenbaugh argues that the failure to serve an amended response has not prejudiced Butts because, among other reasons, Butts' ability to perform another job is irrelevant to the issues before the Court. Defendant's Brief in Opposition to Plaintiff's Partial Motion for Summary Judgment at 6. An award of sanctions is discretionary with the Court. Fed.R. 37(b)(2) (stating that a court "may make such orders in regard to the failure as are just"). Whether sanctions are ordered, and what, if any, sanctions are imposed must be determined in light of the facts of a particular case. 8A Charles A. Wright et al., Federal Practice and Procedure § 2289, at 672 (2d ed. 1994).
The issue raised through Request for Admission No. 3 is irrelevant to the issues in the case. The denial of benefits was based specifically on the finding that evidence is lacking that Butts was unable to perform her former job during the portion of the elimination period from October 26, 2000, through December 24, 2000. For this reason, as well as the candidly-acknowledged clerical error that resulted in the failure to provide an amended answer and response, the events that led up to Butts' request for sanctions included in her motion for partial summary judgment, and the inability of the Court to determine whether one or both Defendants were the subject of the prior order (Filing No. 26), the Court declines to award sanctions pursuant to Federal Rule of Civil Procedure 37. The Court specifically finds that even expenses, including attorney fees, will not be imposed because "other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2).
IT IS ORDERED:
1. The Motion for Partial Summary Judgment (Filing No. 27) Filed by the Plaintiff, Patti L. Butts is denied;
2. The Motion for Summary Judgment (Filing No. 31) filed by the Defendant, Continental Casualty Company, is granted;
3. The Motion for Summary Judgment (Filing No. 32) filed by the Defendant, Michael Foods, Inc. is granted;
4. The Plaintiff's request for sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) (B) is denied; and
5. The Complaint is dismissed with prejudice.