Feltington v. Hartford Life Ins. Co.

586 F.Supp.3d 146

Lisa FELTINGTON, Plaintiff,

v.HARTFORD LIFE INSURANCE COMPANY, Defendant.

CV 14-6616 (GRB)

United States District Court, E.D. New York.

Signed February 17, 2022

Stephen Roger Bosin, Stephen Roger Bosin, Attorney at Law, River Edge, NJ, for Plaintiff.

Michael H. Bernstein, Matthew Paul Mazzola, Robinson & Cole LLP, New York, NY, for Defendant.

MEMORANDUM & ORDER

GARY R. BROWN, United States District Judge:

In military and law enforcement situations, a "warning shot," sometimes known as "a shot across the bow," encompasses a discharge of lethal force directed to avoid harm while conveying a serious message. In soccer, referees use a "yellow card" to similar effect. The goal of the warning shot is to persuade its subject to change course or desist in certain actions to avoid dire consequences while confirming the shooter's readiness to engage. In its review, counsel should make no mistake: this opinion constitutes a warning shot.

In this action, plaintiff Lisa Feltington seeks a determination by the defendant Hartford Life terminating her long-term disability benefits under a private employer-provided disability policy. It seems astonishing that a matter of this relative simplicity – essentially a review of an insurance proceeding record with limited discovery and no right to trial – has entered its seventh year of litigation. Review of this case in conjunction with the instant application and pending summary judgment motion reveals that much of that delay is attributable to the tactics of counsel, who have litigated this matter in a vituperative and dilatory manner.¹ The result has been a mind-numbing elevation of form over substance which had devolved into a conflagration that all but extinguished the search for truth.

Currently, Hartford Life vehemently objects to an unremarkable ruling by the Honorable James Wicks, United States Magistrate Judge, relating to the expansion of the record to include one document which has been subject to unbridled motion practice. Hartford Life predicates its objections upon scattershot assertions, identified below. None of these representations are completely true. Some are half-truths. Others don't even rise to that level. Taken together, they reveal troubling behavior by counsel, emblematic of other facets of this over-litigated case.

The efforts of the defendant's attorneys in this case exceed traditional notions of zealous advocacy² with seeming disregard for the duty of candor toward the Court. The objection distorts the record and launches baseless attacks upon the United States Magistrate Judge assigned to this case, claiming, inter alia , that he acted ultra vires in rendering his decision. Such conduct cannot be condoned. Thus, the Court overrules defendant's objections to Magistrate Judge Wick's Order supplementing the record and affirms the Order in its entirety.

Moreover, over defendant's vehement objection and meritless opposition, discovery of its claims policies has produced startling information, as it appears that Hartford Life maintained policies and practices relating to handling of disability claims that may be contrary to law or bear upon the Company's structural conflict of interest in such matters. Therefore, in order to afford the parties a final opportunity to resolve this matter, pursue alternative avenues, or address the deficiencies in their motion papers, the pending motions for summary judgment are denied without prejudice to renewal consistent with this decision.

BACKGROUND

The seven-year litigative history of this action challenging a finding regarding disability benefits need not be reiterated here. The docket in this matter – containing close to 100 entries in addition to the 1,000-page administrative record³ – has become so very overburdened that even defendant's counsel deploys shortcuts in its papers. DE 74 at 7 n.2. ("For a detailed discussion of the relevant facts, Defendant respectfully refers the Court to the Statement of Facts section of its Opposition to Plaintiff's Letter Motion to Expand the Administrative Record (Doc. No. 43) and Defendant's Rule 56.1 Statement⁴ of Material Facts (Doc. No. 49)"). Notably, the Rule 56.1 statement runs more than 125 numbered paragraphs – some of which are disputed -- spread over 19 pages, such that its incorporation by reference proves less than helpful. Many of the allegations and some of the unwieldy history of this matter are summarized in orders by Judges Tomlinson and Wicks, familiarity with which is assumed. DE 19, 40, 69.

DISCUSSION

This decision is rendered in accordance with the well-established standards of review of an objection to a non-dispositive order by a magistrate judge. See, e.g., Mullen v. City of Syracuse , 582 F. Appx 58, 61 (2d Cir. 2014) ("Where, as here, the district court has referred a non-dispositive matter to a magistrate judge for decision, the district court shall set aside the order only insofar as it ‘is clearly erroneous or is contrary to law.’ " (quoting Fed.R.Civ.P. 72(a) )). As will be seen, since this Court had previously ruled against defendant on the very issue raised here, the standard of review is largely irrelevant.

1. Judge Tomlinson Declined to Decide the Motion to Enlarge the Record and Never Suggested that this Matter had to be Resolved by the Assigned District Judge

In a lengthy, detailed opinion, Judge Tomlinson ruled on plaintiff's motion for extra-record discovery. Feltington v. Hartford Life Ins. Co. , 2021 WL 2474213, at *1 (E.D.N.Y. June 17, 2021).

Her description of the communications surrounding the termination of plaintiff's disability benefits proves insightful:

Dr. Small provided Hartford with a Medical Record Review report ("MRR"), dated September 12, 2014, regarding his review of Plaintiff's medical file. See MRR, annexed as Ex. B to Pl.’s Mot. [DE 17]. According to the MRR, Dr. Small reviewed the following documentation in Plaintiff's file: (1) MRI reports and x-ray reports; (2) records from Dr. Farrugia, Dr. Reginald Rosseau, M.D., Dr. Porges, and Dr. Fazzini; (3) Dr. Dawodu's IME report; (4) the FCE Report from Best; (5) and two surveillance videos of the Plaintiff. Seeid. at 000356-00361. In summarizing the FCE Report, the MRR states:

An unusual functional capacity evaluation, which is unsigned , is reviewed from Best Physical Therapy. This was performed on May 16, 2014. The pertinent findings from this evaluation purport that the claimant could only lift 16lbs, and only from a 24 inch high level. She could carry in front 16lbs and to either side 14lbs. She could push 42lbs and pull 43lbs. She was allegedly found to have a poor sitting tolerance. The individual who completed this report concluded that ‘the claimant's physical abilities do not match the job description of a quality assurance coordinator’ because:

She could not sit for frequent and continuous periods of time without trunk flexion and rotation.

She could walk only rarely.

She could not reach overhead.

She could only lift 16lbs from a 24 inch height.

She could only side-carry 14lbs. Her right hand coordination was ‘less than average; particularly, with fine and gross motor skills.’

The author of this report who is, at this time, anonymous , concluded that the claimant was ‘unable to do light work’ and also concluded that the claimant was ‘unable to do sedentary work.’

Id. at 000359-000360 (emphasis supplied). Ultimately, Dr. Small concluded that the "unsigned" FCE Report by Best "appears to be less than objective" because its findings "are inconsistent with the findings at the examination performed by Dr. Dawodu" as well as Plaintiff's "activity level displayed on the surveillance videos" observed by Dr. Small. Id. at 000362.

Under the subheading entitled "Attending Physician Contact Documentation," the MRR states that Dr. Small "ha[d] not been asked to contact an [Attending Physician] regarding the [Plaintiff]," but that he "ha[d] been asked to contact Best Physical Therapy Associates." Id. at 000361. According to Dr. Small,

On August 9, 2014 at 2pm Central Standard Time I placed a call to [Best at] 914 708.6548. I reached a recorded voicemail message from a Karen Cavenaugh asking for me to leave a message. I left my name and return phone number. I called again on August 10, 2014 at 1:15 pm Central Standard Time again reaching voicemail. I left another message to return my call. On August 11, 2014 at 10:30 am Central Standard Time, I placed a third call and reached the same voicemail. Once again, I left a message to return my call.

Id. Thus, according to the MRR, Dr. Small never spoke with a representative at Best, despite his multiple attempts to do so.

2021 WL 2474213, at *3. She then notes that "Greenberg's response makes clear that ‘the events described by Dr. Small never occurred.’ " Id. at *4. Judge Tomlinson further noted that, according to plaintiff:

Hartford "used Dr. Small's version of events" to support its decision to affirm the denial of Plaintiff's long-term disability benefits. Id. at 2. Specifically, Hartford "disparage[ed]" the FCE Report "by stating that Dr. Small's calls to Best Physical Therapy to discuss Plaintiff's level of function had not been returned" and by "repeat[ing] Dr. Small's comment that Best's report was unsigned and that the author remains unknown."

Id. at *5. She also held, without disputation, that Hartford labored under a "structural conflict of interest," in that the Company "both evaluates claims for benefits and pays benefits claims" Id. at *7. Judge Tomlinson observed that such a structural conflict of interest supported plaintiff's application for discovery outside of the administrative record, and ultimately granted some of plaintiff's requests. And, of course, "a conflict of interest is to be ‘weighed as a factor in determining whether there [wa]s an abuse of discretion.’ " McCauley v. First Unum Life Ins. Co. , 551 F.3d 126, 128 (2d Cir. 2008) (quoting Metro. Life Ins. Co. v. Glenn , 554 U.S. 105, 115, 128 S.Ct. 2343, 171...