Summary
granting summary judgment because the plaintiff failed to "offer[] any testimony to show what changes the Trustees would have made or which decisions would have been altered (and how) if they had been given a more accurate estimate of the plan liabilities"
Summary of this case from City of Providence v. Buck Consultants, LLCOpinion
CASE NO. 1:08 CV 1642.
August 10, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Milliman, Inc.'s Motion for Summary Judgment (ECF #54). Plaintiffs filed a Memorandum in Opposition to Defendant's Motion, and the Defendant filed a Reply in support of its motion. (ECF #63, 65). Having considered the arguments of all parties, as well as the relevant facts and law, Defendant Milliman, Inc.'s Motion for Summary Judgment is Granted.
FACTS
The factual summary is based upon agreed or unchallenged facts set forth in the parties' statements of facts. Those material facts that are controverted and have support on both sides, as established by deposition testimony, affidavit, or other appropriate evidence are stated in a light most favorable to Plaintiff, the non-moving party.
The Plaintiffs ("the Trustees") represent the Excavating, Building Material and Construction Drivers Union Local No. 436 Pension Fund ("the Fund"). Milliman, Inc. ("Milliman") served as the Fund's actuary for approximately 16 years, from 1989 to 2005, acting under a written contract. Pursuant to the contract, Milliman was responsible for generating actuarial reports and performing valuations in order to inform and advise the Fund as to how much of its liability was funded ("funding status"). The reports were generated based on information provided to Milliman by the Fund. Plaintiffs allege that the data provided by the Fund and used by Milliman to produce its actuarial reports was "bad" or flawed, that Milliman should have discovered the defects in the data, and that because it did not, it underestimated the Fund's liabilities and incorrectly represented the funding status.
In 2005, the Fund replaced Milliman with a new actuary, Sam Harris. Mr. Harris discovered that data relied upon by Milliman was flawed and did not match up with information then on file with the Fund Office. Using the new information, Mr. Harris calculated a higher amount of unfunded liability than Milliman had reported.
Plaintiffs argue that because they received underestimated liability reports from Milliman, they entered into financial obligations that they would not otherwise have undertaken. Specifically, Plaintiffs claim that, based on Milliman's representations, they approved a benefit increase of $600.00 per month in 2001, for an increase of 75 cents per hour in contributions. (Tiboni Depo. at 33:19-34:10). Through this action, Plaintiffs seek to recover damages arising from Milliman's alleged failure to perform, including the full value of his contract over sixteen years ($495,823.00), and another $2.75 million dollars in generalized damages.
STANDARD
Summary judgment is appropriate when the court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The burden of showing the absence of any such "genuine issue" rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict." Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the non-mover. The non-moving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as an automatic grant of summary judgment, where otherwise appropriate. Id.
In sum, proper summary judgment analysis entails "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.
ANALYSIS
There seems to be no dispute that Milliman relied on incorrect data in developing at least some of its reports of estimated liability for the Fund. However, there also no dispute that the information Milliman relied on was provided by the Fund. Further, there is no absolutely no evidence that the reports and recommendations based on the mistaken information, were the result of any fraud, or that Milliman violated ERISA. The only indication of negligence offered by the Plaintiffs is one proffered expert report ("the Gewirtz Report") that concludes that because Milliman did not discover the mistakes in the information and did not press the Fund to verify and update the information, it did not act within the acceptable professional standards. For the reasons set forth below, the Court finds that Mr. Gewirtz's conclusion lacks evidentiary support, and that Plaintiffs have provided no actual evidence of negligence. There is also no actual evidence of any specific damages incurred by the Fund as a result of the Milliman recommendations and reports. Finally, the statute of limitations bars any claims based on reports, representations or advice provided by Milliman prior to July 8, 2004.
A. Counts One and Two: Audit. Accounting, and Restitution
Plaintiffs do not contest Defendant's request for Summary Judgment on Counts One and Two. Defendant claims that Count One is moot because Milliman produced the requested records to the Fund in 2008. Plaintiffs do not challenge this assertion. Further, Defendant claims that Count Two fails because there is no evidence whatsoever that Milliman's bills were not appropriate, were unreasonable, or were unnecessary. In fact, Mr. Tiboni, the Chairman of the Board of Trustees (and the first-named Plaintiff in this action), testified that he approved Milliman's bills and still has no concern with the billing. (Tiboni Dep. At 26:1-23). Plaintiffs concede in their Opposition to the Defendant's Summary Judgment motion that they have "little support for their belief that they were inappropriately billed" and that "evidence has been lacking to support that allegation." Therefore, Counts One and Two are dismissed, without opposition, for lack of any supporting evidence.
Defendant also argues that ERISA does not offer the relief sought in Count One, and that Count Two is not a permissible claim under ERISA. Although ERISA dictates the form and manner in which documents relating to an ERISA plan must be maintained, who must maintain them, and under what circumstances they must be provided upon request, Plaintiff has cited no section of ERISA that would provide for an "audit" as requested in Count One. Further, although a court has the authority under Section 1132(a)(3) to order that funds or property "in the defendant's possession" be restored to their rightful owner, it does not permit court to "impose personal liability" against an individual for funds that the defendant does not "hold." Sereboff v. Mid Atl. Med. Services, Inc., 547 U.S. 356, 361-62 (2006). As there is no evidence of any improper payment made to Milliman, and no evidence that Milliman is currently "holding" any monies or property rightfully belonging to the Fund, there is no claim for restitution under ERISA.
B. Count Four: Fraudulent Misrepresentation
Plaintiffs also make no argument against a dismissal of Count Four for fraudulent misrepresentation. As argued by Defendants, there is absolutely no evidence that Milliman committed fraud. Plaintiff has provided no evidence whatsoever that would prove or even imply that Milliman made false statements with the intent to mislead them or otherwise cause them harm. Therefore, Count Four is also dismissed, without opposition, for lack of evidentiary support.
C. Counts Three, Five, Six, and Seven: Negligence and Breach of Contract
1. Statute of Limitations
Defendant argues that any claims arising out of alleged negligent acts (or breach of contract) prior to July 8, 2004 are barred by the statute of limitations. The Fund's state law claims for negligent misrepresentation, negligence, and professional negligence are all subject to Ohio Rev. Code § 2305.09, which prescribes a four year statute of limitations. Plaintiffs do not contest that this is the appropriate statute to apply when determining the statute of limitations for acts of negligence.
Plaintiffs also do not contest that the Ohio Supreme Court has held that negligence claims governed by the statute of limitations set forth in Ohio Rev. Code § 2305.09 do not receive the benefit of the discovery rule. See Plumbing and Pipefitting Indus. Local 219 Pension Fund v. Buck Consultants, LLC, 2007 WL 4287870 at *2-3 (N.D. Ohio, Dec. 6, 2007), citing Investors REITOne v. Jacobs, 546 N.E.2d 206, 209 (Ohio 1989). They do, however, argue that this Court should adopt the admittedly minority position of two Ohio appellate districts that have allowed an extension of the statute of limitations in some circumstances when damages did not manifest for a period of time after the negligent act actually occurred.
This Court declines to adopt the delayed damages exception to the statute of limitations created by Gray v. Estate of Berry, 101 Ohio App. 3d 764, 656 N.E.2d 729 (6th App. Dist. 1995); Fritz v. Bruner Cox, LLP, 142 Ohio App.3d 664, 756 N.E.2d 740 (5th App. Dist. 2001), and J.P. Morgan Chase Bank v. Lanning, 2008 Ohio App. LEXIS 755 (5th App. Dist. 2008). The Sixth Circuit considered the cases of Gray, Fritz and Lanning when it reviewed Plumbing and Pipefitters, and it rejected their holdings in the context of changes in liability of a union pension plan. In the face of a clear directive from the Ohio Supreme Court in Investors REIT One, and the precedent from this Court, affirmed by the Sixth Circuit, in Plumbing and Pipefitting Indus. Local 219 Pension Fund, the Court finds that the four year statute of limitations applies in this case, and that it begins to run at the time of the allegedly negligent act.
Even if this Court were to adopt the delayed damages exception as set forth in the above mentioned cases, that exception likely would not apply in this case. In each of the cases mentioned above, the harm occurred at a specific and distinct time after the negligent act; and, in each of these cases, the Plaintiffs contended that they could not have brought a cause of action any sooner because they had not suffered any actual harm. In addition, the damages in each instant were clear and concrete. In this case, the damages, as described by Plaintiffs, are far from specific and distinct. Rather, Plaintiffs cite an on-going string of potential future events — the future payouts for all retirees who will profit from the 2001 increase in benefits — as the harm, but calculate the damages based on the amount of liabilities that were underestimated, a figure that is utterly unrelated to the amount of benefits that will be paid out under the 2001 agreement over the course of time.
In Gray and Fritz the damage, or harm was the assessment of a penalty by the IRS; in Lanning it was an adverse foreclosure action)
This alleged harm is speculative at best, as it assumes the payout will remain the same until all affected parties have been paid the full amount of their pension, without a change in benefits, without any recuperation of losses through an increase in contributions, by foregoing a future increase that might otherwise have become an option at a later date, or by any other means of mitigation.
Further, if, as Plaintiffs argue, no cause of action exists until the harm has occurred, then arguably Plaintiffs would not have standing to recover for any damages anticipated to occur when future members retire. Further, neither party makes clear when the first payout including the 2001 increase of benefits occurred. If it occurred in 2004 or earlier, then the Fund would have suffered damages more than four years prior to the filing of this lawsuit, and even under the delayed damages theory the statute of limitations would have expired prior to the start of this litigation. On the other hand, if Defendant's argument is correct, the harm occurred when the pensioners earned their service and became vested in their pension, immediately following the 2001 increase in benefits, not at some future date when they actually receive payment from the Fund. Under Plaintiffs' theory, their suit would be premature; under Defendant's it would be untimely under the statute of limitations. Under either approach the Plaintiffs cannot recover.
The continuing tort theory espoused by Plaintiffs does not save them from this conclusion. This is because they have not shown evidence of any current or past damages that are continuing; they argue only about future damages that will arise when the pension payments become due. In addition, the continuing tort theory is premised on the assumption that the tort itself is on-going, not just the damages resulting from a past tort. In this case, any alleged tortious behavior could not have occurred after Milliman was replaced as the actuary in 2005.
Although Plaintiffs argue, correctly, that claims for breach of a written contract are generally covered by a fifteen year statute of limitations, in these circumstances, the breach of contract claim (Count Seven) falls within the same four year statute of limitations as do the negligence claims. "[C]ourts have routinely held that the breach-of-contract claim is simply a restatement of the negligence claims and that the four year statute of limitations for professional negligence" applies. Plumbing and Pipefitting Indus. Local 219 Pension Fund v. Buck Consultants, LLC, 2007 WL 4287870 at *4, citing Fronczak v. Arthur Anderson, L.L.P., 705 N.e.2d 1283, 1287 (Ohio App. 10 Dist. 1997). Plaintiffs contend that their breach of contract claim does not stem from the same facts as its claim for professional negligence.
The only portion of the extensive contract that Plaintiffs' claim Milliman has breached is the following:
Milliman shall use reasonable efforts to identify errors in data and obtain corrections to erroneous data. . . . Milliman will perform all services in accordance with applicable professional standards.
Plaintiffs argue that this promise goes beyond Milliman's duty to perform its duties in accordance with the applicable standards of professional care. Clearly the second portion of the quoted statement does nothing more than re-state Milliman's obligation to perform within the boundaries of the profession. Further, based on the standards set forth in Plaintiffs' proffered expert report by Paul Gewirtz, the first section also merely reiterates a specific professional standard for actuaries. According to Gewirtz, actuaries are professionally required to review data for reasonableness and consistency, and to identify material problems. The contract does not require an audit of the data, only "reasonable efforts to identify errors" and "obtain corrections." This standard would seemingly be satisfied by compliance with the professional standards requiring a review for reasonableness and consistency. Regardless, even if the required level of attention required by the contract is deemed to be higher than is required by the general professional standards, the same alleged acts and omissions make up the basis for both the negligence and the breach of contract claims, and they arise from the same facts. Where the factual allegations are the same for both claims, whether or not the ultimate standard may differ slightly, the reasoning in Plumbing and Pipefitters applies and the breach of contract claim will fall subject to the four year statute of limitations.
Therefore, applying the four year statute of limitations set forth in Ohio Rev. Code § 2305.09, any claims (whether for in negligence or breach of contract) based on actions or omissions performed by Milliman prior to July 8, 2004 are barred by the statute of limitations. As Plaintiffs have not specifically identified any alleged acts or omissions occurring after July 8, 2004, they have not met their burden to show evidence supporting their claims on Counts Three, Five, Six, and Seven, and those Counts must be dismissed.
Mr. Harris' report notes that approximately $150-200 thousand dollars of additional unexpected actuarial liability was discovered from employees who retired in 2005. His statement and his report do not specify which of Milliman's reports were considered to be faulty or whether any of Milliman's acts or omissions occurred between July 8, 2004 and Milliman's termination in August of 2005. Further, nowhere in Mr. Harris' declaration or proffered expert report does he conclude or opine that Milliman was negligent in any way, or that Milliman breached its contract with the Fund.
2. Lack of Evidentiary Support
Even if the statute of limitations did not bar these claims, and even if Plaintiffs had identified acts or omissions occurring after July 8, 2004, Defendant's motion for summary judgment on these claims would still be granted. As stated earlier, the parties do not dispute that Milliman was mistaken in its assessment of the Fund's liability, or that those liabilities were based on incorrect information provided by the Fund. However, there is no evidence that the steps Milliman undertook in arriving at its estimates were negligent, unreasonable, unsupported, or otherwise deficient in any way.
Plaintiffs spend most of their brief in Opposition referring back to claims that they made in their Amended Complaint. They do not cite any actual evidence that Milliman acted negligently or unreasonably in the performance of its contract with the Fund. The non-moving party may not simply rely on its pleadings, but must "produce evidence that results in a conflict of material fact to be solved by a jury." Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). The inquiry should end here. The Court should not have to scour the information and evidence available to the parties for any possible support for Plaintiffs' claims, when that information is not referenced or cited in the Plaintiffs brief. Nonetheless, in an abundance of caution, the Court reviewed all of the information contained in the exhibits attached to the Plaintiffs Opposition, and will address the relevant information contained therein.
The proffered expert testimony by Sam Harris does not indicate that Milliman was negligent, or that it breached its contract. The only portion of the Gewirtz Report that was cited in the brief states that Milliman issued actuarial reports with the incorrect liability through the 2005 annual Report, which was delivered in 2006. The brief does not indicate that Mr. Gewirtz found that Milliman was negligent, or that it had breached its contract, only that the 2005 report was incorrect. Further, the Gewirtz Report does not specifically state that the 2005 report was incorrect. It assumes without describing that there was a problem with the credited service data and outlines steps that could have been taken generally over the course of 17 years.
Mr. Harris has not concluded, in his declaration or his proffered expert report, that Milliman was negligent, unreasonable, or otherwise in violation of any applicable professional standards. Mr. Gewirtz, although he concludes that "Milliman's actuaries did not provide the standard of care required of qualified, credentialed actuaries during most of the 17 years they were the Plaintiff's [sic] actuaries," provides no evidence to support his conclusion. Rather, he spends a good portion of his report setting forth general standards without actually comparing Milliman's work to those standards; he describes reasonable options without indicating what options Milliman exercised and whether those might also be considered reasonable; and, he describes what "most large firms" do, without indicating whether a failure to do this would violate professional standards or otherwise be considered negligent. In addition, he makes the assumption that there was a "problem with the credited service data" without describing the problem, without identifying the source of his information about the problem, without quantifying the problem, and without indicating when or how that problem came to be.
Defendant has an outstanding Motion Pursuant to Civil Rule 37(b) and (d) to Prevent Plaintiffs from Introducing Any Testimony or Otherwise Using Their Expert Sam Harris in this Litigation. (ECF #42). Earlier in the litigation, Plaintiffs moved for a Protective Order relating to Mr. Harris' deposition. The Plaintiffs motion was denied and the Court ordered that Mr. Harris attend his deposition. (ECF #41). After the Court's Order was issued, Mr. Harris again failed to appear for his deposition on the grounds that he was not prepared and that he had other matters scheduled. (ECF #40, 42, 51). On the day of his scheduled deposition, Mr. Harris was present in Cleveland, and was meeting with Plaintiffs other proposed expert Mr. Gewirtz. (ECF #53, Ex. A, Ex. B). Mr. Harris, thus, failed to attend two scheduled depositions and did not make himself available for deposition prior to the close of discovery as ordered by this Court. Were this case to proceed to trial, the Court would take Defendant's motion under close consideration. However, as nothing in Mr. Harris' declaration or proffered expert report provides evidence of Milliman's alleged negligence or breach of contract, and Court is granting summary judgment on the Plaintiffs' claims, the motion is denied as moot.
Defendant also has an outstanding Daubert Motion Relating To Plaintiff's Expert Paul Gewirtz, seeking to exclude Mr. Gewirtz's testimony. (ECF #55). Although there may be some merit to this motion, for purposes of the summary judgment motion the Court has analyzed Mr. Gewirtz's Report below. Because consideration of the Gewirtz Report does not alter the Court's decision on the summary judgment motion, the Daubert motion is denied as moot.
Further, Mr. Gewirtz notes that Milliman did take steps to offset experience losses with tightened assumptions; did do a gain and loss analysis each year; and, did perform an experience study when it changed assumptions. Mr. Gewirtz also noted that Milliman regularly attempted to obtain verified, updated data from the Fund, but none was ever provided by the Fund. The Gewirtz Report reiterates that the professional standards assign responsibility for the accuracy of data on the ones who supply the data (in this case the Fund), not on the actuary who relies on the data, so long as the reliance is disclosed (as it was in this case). Mr. Gewirtz goes on to say that the actuary must review the data for reasonableness and consistency and describes how this should be done; however, a careful review of the report shows that there is no evidence that Milliman failed to perform such a review. In fact, during his deposition, Mr. Gewirtz acknowledged that he did not review any of Milliman's work papers; did not examine any records maintained by the Fund; and did not take any steps to validate whether the errors could have been found by Milliman even if it had taken every step recommended by Mr. Gewirtz in his report.
Although he states that many actuarial firms perform a detailed gain and loss analysis by source, rather than category as Milliman did, he acknowledges that neither approach is, by itself, entirely "up to the task." He recommends using both and states that most large firms have software to allow for both approaches, but does not indicate whether it is industry standard to actually perform both.
As to the specific language in the breach of contract claim, not only is there an absence of evidence to show that Milliman was unreasonable in its efforts to identify and seek the correction of errors, The Gewirtz Report indicates that there is affirmative evidence to show that Milliman's representative, Martin Feldman affirmatively sought verification and updates of the data from the Fund Administrator, but the Fund never provided it. There is surely no requirement in the contract that Milliman create or obtain its own data, only that it seek to identify and correct errors. If the Fund was unresponsive to Milliman's efforts to update and verify the data, Milliman cannot be held responsible for the resulting misinformation.
Thus, the Gewirtz Report, despite the conclusory language stating the Milliman did not "provide the standard of care required of qualified, credentialed actuaries during most of the 17 years they were the Plaintiff's actuaries," provides no actual evidentiary support for Plaintiffs claim for breach of contract, negligence, or breach of professional duty. Further, even if taken as true, the conclusion does not establish the timing of the alleged breaches, the specific consequences of the alleged breach, or any calculation of the past or expected damages resulting from the alleged breaches.
There is no evidence that Milliman's underestimation was the cause of any actual damage to the Fund. The parties are in agreement that the Fund was responsible for all liabilities created by the Fund documents and amendments, whether or not they appeared in any report. Therefore, Plaintiff admits that Milliman is not liable for any unreported or underestimated liability owed by the Fund. There is no causal connection between the Fund's actual liability and the amount recognized and reported on by the its actuaries. Nonetheless, Plaintiffs have attempted to assign liability to Milliman in the amount of the underestimated liabilities.
In addition, Plaintiffs have offered no evidence to show what the "correct" liabilities would have been for the years during which Milliman was the actuary. Neither of Plaintiffs proffered experts, Samuel Harris and Paul Gewirtz have calculated the "correct" liability amounts for the years Milliman was in charge of estimating liabilities; nor have they offered any testimony to show what changes the Trustees would have made or which decisions would have been altered (and how) if they had been given a more accurate estimate of the plan liabilities.
Plaintiffs argue that in 2001 the Trustees approved a benefit increase of $600.00 per month based on Milliman's representations. They further argue that when Milliman told them they could afford the increase, he "failed, however, to tell the Trustees that they had approximately $2.3 million in unfunded liability that needed to be considered." (ECF #63 at 8). Plaintiff's expert, Sam Harris, however, attested that up to $200,000 of the alleged $2.3 million dollar discrepancy was related to retirements occurring in 2005, and the remaining amounts were discovered when Milliman's information was compared to the Fund's records as they were held in 2007, and 2008. Plaintiffs have provided no evidence of what information the Fund records would have revealed in any year prior to 2007, and Defendant has shown that Milliman repeatedly requested updates to its records (provided by the Fund) without avail. The Gewirtz Report further indicates that using the methods recommended by Gewirtz, Milliman would likely not have been able to uncover the problem with the data until 2003. There is absolutely no evidence that Milliman could have or should have known of any additional unfunded liability in 2001 when the decision to increase benefits was made. Therefore, there is no evidence of any causal connection between Milliman's alleged negligence and the decision to increase rates in 2001.
According to Plaintiffs' proffered expert, Paul Gewirtz, from 1991 through 2005, Milliman's reports provided a detailed discussion of their data procedures along with the disclaimer: "The Fund office is currently unable to verify the credited service or eligibility service data." Further, from 1999 to 2004, the reports also state: "[w]e have relied upon participant census data furnished by the Fund Office . . . We have not audited the information provided to us, but we have reviewed it for general reasonableness. The results of this valuation are dependent on the underlying data and information being complete and accurate. Any variations could materially affect our results." Further, Martin Feldman, the actuary from Milliman who worked with the Fund stated that about every 2-3 years he had a discussion with the Fund Administrator about his need for them to verify the credited service information, but they never did. (ECF #63-7, at 4-6).
Having no actual evidence of the degree of the alleged misestimation, no evidence of what information would have been available to Milliman had they made additional attempts to update or verify the information that they were provided, and no concrete evidence as to any specific change could or would have been made, there is no way to determine whether Milliman's alleged negligence proximately caused any monetary damages, or how much of those damages could have been mitigated if they were timely and properly addressed by the Fund.
In short, Plaintiffs have provided no more than conclusory statements in support of their claims. Having shown no actual evidence to support the elements of their claim, or to establish damages beyond the level of mere speculation, no reasonable juror could find in favor of the Plaintiffs. For all of these reasons, Plaintiffs negligence and breach of contract claims (Count Three, Five, Six, and Seven) are dismissed.
"The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copelandv. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is "merely colorable" and not "significantly probative," the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted).
CONCLUSION
For the reasons set forth above, the Defendant's Motion for Summary Judgment is GRANTED (ECF #54). Defendant's Motions to exclude expert testimony (ECF # 42, 55) are denied as moot. IT IS SO ORDERED.
DATED: August 10, 2010