United States District Court, M.D. Pennsylvania
DR. ROBERT BRUGLER, Plaintiff,
UNUM GROUP and PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW W. BRANN UNITED STATES DISTRICT JUDGE
4, 2019 I. BACKGROUND This Court writes to explain this
case's progression and clarify the issues that the
parties will test at trial, which is scheduled to begin this
Monday, October 7, 2019.
27, 2015, Plaintiff Dr. Robert Brugler initiated this action,
claiming in his complaint that Defendants Unum Group and
Provident Life and Accident Insurance Company breached the
terms of Dr. Brugler's long-term disability insurance
policy. He also claimed that Defendants had acted in bad
faith towards him when handling his policy.
discovery and an unsuccessful mediation with the Honorable
Thomas I. Vanaskie, then United States Circuit Judge for the
United States Court of Appeals for the Third Circuit,
November 2, 2018, this Court granted Defendants' motion
for partial summary judgment and dismissed Dr. Brugler's
bad faith claim. My decision to dismiss the bad faith claim
hinged on the fact that Defendants' independent medical
examiner, Dr. Michael Schaffer, had “conclude[d] that
Dr. Brugler was no longer disabled under the
my decision at summary judgment, on November 28, 2018, I
referred the case to Chief Magistrate Judge Susan E. Schwab
for settlement proceedings.This second attempt at resolution
was also unsuccessful,  and on March 11, 2019, the case
returned to my docket. After a status conference held on April 5,
2019, the Court was prepared to immediately set a trial date.
Indeed, the Court followed up with the parties' counsel
on multiple, regular occasions, seeking to ascertain what
dates would be appropriate for trial. But the parties'
counsel claimed various impediments and obstacles, which
delayed the scheduling of trial by nearly a month. This Court
eventually issued a Scheduling Order on May 1, 2019. This
Order fixed a July 29, 2019 deadline for motions in
limine and pre-trial memoranda, scheduled the final
pre-trial conference for September 23, 2019, and fixed the
date certain for jury selection and the start of trial as
October 7, 2019.On July 16, 2019, Defendants moved for a
ten-day extension for motions in
limine; I denied this motion.
29, 2019, the parties duly submitted their motions in
limine. Dr. Brugler moved in limine to
exclude Dr. Schaffer's testimony-including his expert
opinion that Dr. Brugler was no longer
disabled. Defendants moved in limine to
preclude Dr. Brugler from testifying as to Defendants'
intentions in handling his claims and as to his Internet
research into Defendants' history of claims
handling.Defendants also moved in limine
to preclude Dr. Brugler from challenging the reasonableness
of the stereoacuity testing (in this case, the Titmus test)
that Dr. Schaffer performed on Dr. Brugler during the course
of his independent medical examination.
September 17, 2019, I granted Defendants' motions in
limine, and denied Plaintiff's motion in
limine in part and granted it in part. In an
accompanying Memorandum, I explained that I was granting
Defendants' motions to preclude the above subjects of Dr.
Brugler's testimony because these subjects were not
relevant to the sole breach of contract claim before the
Court at the time, and including these subjects would prove
unduly prejudicial to Defendants.
explained that I needed more development of the factual
record in order to fully resolve Dr. Brugler's motion to
exclude Dr. Schaffer's testimony. I was able to conclude
that Dr. Schaffer could testify about the condition of Dr.
Brugler's eye and Dr. Brugler's visual ability,
but I needed more information on Dr. Schaffer's
qualifications and the reliability of his methods to
determine whether Dr. Schaffer could testify about whether
Dr. Brugler could practice dentistry. The same day
the Court issued its Memorandum and Order, it, sua
sponte, reached out to the parties' counsel to
schedule a conference call to discuss the need for more
information from Dr. Schaffer.
conference call occurred two days later, on September 19,
2019. The Court explained that it had significantly less
information about Dr. Schaffer than about the other experts
about which it issued its motion in limine rulings,
and proposed a Daubert hearing to elicit this
information and conduct a fulsome analysis into Dr.
Schaffer's qualifications and into the reliability of his
methods. The parties stated their intention to resolve this
issue without a Daubert hearing.
pre-trial conference held four days later on September 23,
2019, defense counsel stated that he had reviewed Dr.
Schaffer's deposition testimony. Per defense counsel, Dr.
Schaffer had the same basic and limited understanding of Dr.
Brugler's duties as a dentist as did the other three key
expert witnesses whose testimony was at issue. I confirmed
with defense counsel that I would need a statement in writing
confirming Dr. Schaffer's understanding of Dr.
Brugler's dentistry duties. I also reiterated the
Court's willingness to conduct a Daubert
hearing, and presented potential dates for the hearing
(understanding that the hearing would, of course, necessarily
fall close to trial).
days later, on September 26, 2019, defense counsel
memorialized his pre-trial conference statements in a letter
to the Court. The Court analyzed this new information
about Dr. Schaffer's qualifications, and concluded in an
Order of that same date that Dr. Schaffer was not qualified
to testify about whether Dr. Brugler could practice
October 2, 2019, Dr. Brugler's counsel wrote to assert
that Dr. Brugler's bad faith claim should be reinstated,
and that the Court should preclude Defendants from attacking
Dr. Brugler's credibility. Yesterday, October 3, 2019, in
another telephonic conference with counsel for the parties, I
stated that based on Dr. Schaffer's lack of
qualifications, I would be allowing Dr. Brugler's bad
faith claim to proceed and would be allowing Defendants to
attack Dr. Brugler's credibility. I explained that this
formal Memorandum and Order would follow to memorialize my
ruling. Defendants' counsel objected and orally moved for
a continuance, claiming that Defendants needed additional
time before trial to prepare to defend against the bad faith
claim. Defendants then followed up with a motion for
reconsideration of my decision to reinstate Dr. Brugler's
bad faith claim.
reviewed Defendants' motion for reconsideration, and I
find it well constructed. I appreciate its arguments. But I
do not find it persuasive.
Schaffer cannot testify about Dr. Brugler's ability to
practice dentistry, then, by extension, Dr. Schaffer cannot
testify about whether Dr. Brugler is disabled under the terms
of his policy. Given that Dr. Schaffer can no longer
give his expert opinion as an independent medical examiner
that Dr. Brugler was no longer disabled, the evidence in the
record does not establish as a matter of law that Defendants
“had a reasonable basis to deny [Dr. Brugler's]
claim.” Thus, this Court now modifies the
portion of its summary judgment decision that dismissed Dr.
Brugler's bad faith claim. Dr. Brugler can proceed with
his bad faith claim at trial.
Brugler can also now testify about his personal belief about
Defendants' intentions in handling his claim, about the
reasonableness of Defendants' request to have Dr. Brugler
undergo the Titmus test, and about the reasonableness of Dr.
Schaffer's performance of the Titmus test. All three
topics are clearly relevant to Dr. Brugler's bad faith
claim, and their inclusion would not be unduly prejudicial.
Fed R. Evid. 401; Fed.R.Evid. 403. But Dr. Brugler may not
testify about his Internet research into Defendants'
history of claim handling. This would present a danger of
“confusing the issues [and] misleading the jury”
in this case, given Unum's recent reforms to its claims
handling internal procedures. The Court now modifies its
September 17, 2019 Order on Defendants' motions in
limine; this is reflected in the below Order.
Brugler can attempt to advance this claim, Defendants are
free to bring Dr. Brugler's credibility into question.
Dr. Brugler's credibility is of obvious relevance to the
questions of (1) whether Defendants “had a reasonable
basis to deny [Dr. Brugler's] claim,
” and (2) whether Defendants acted in bad
faith towards Dr. Brugler in their handling of Dr.
Brugler's claim. If Defendants' bad faith is an issue
in this case (and it now is), then Dr. Brugler's
credibility can accompany by association. This Court will not
preclude Defendants from bringing Dr. Brugler's
credibility into question during trial.
turn, Defendants can introduce-for the limited purpose of
defending against Dr. Brugler's bad faith claim-Dr.
Friberg and Dr. Schaffer's opinions that Dr. Brugler
could practice dentistry. These conclusions are clearly
relevant to whether Defendants had a reasonable basis to deny
Dr. Brugler's claim. The conclusions of Dr. Marks and Dr.
Vander that Dr. Brugler could not practice disability are
likewise now admissible for limited purposes-either for Dr.
Brugler to defend against attacks on his credibility, or for
Defendants to further support their defense against Dr.
Brugler's bad faith claim. As the Court ruled on
September 17, 2019 and September 26, 2019, these experts were
not qualified to give these specific opinions. But these
opinions are still relevant when considering what Defendants
relied on in processing Dr. Brugler's disability claim
and in considering Dr. Brugler's credibility in bringing
his disability claim. The Court now further modifies its
September 17, 2019 Order on Defendants' motions
Court understands full well that this ruling comes with trial
fast approaching, and that this ruling broadens the scope of
the issues to be addressed at trial. But the Court will not
grant Defendants' motion for a continuance. The Court
believes that its September 17, 2019 Memorandum and
Order-issued nearly three weeks before the start of
trial-placed Defendants on constructive notice of the
high probability that the Court would reinstate Dr.
Brugler's bad faith claim. Here's why.
stated above, the Court's November 2, 2018 summary
judgment decision on Dr. Brugler's bad faith claim
depended on Dr. Schaffer's ability to testify about Dr.
Brugler's ability to practice dentistry. At summary
judgment, Defendants did, as the Court noted, present
“ample, undisputed record evidence that [they], after
conducting a thorough investigation of Dr. Brugler's
claim, had a reasonable basis to deny his disability
claim.” ECF No. 43 at 14. But the evidence that
Defendants presented in support of their decision to deny Dr.
Brugler's claim shows that Defendants depended on Dr.
Schaffer being qualified to provide, and using reliable
methods in the provision of, an opinion on Dr. Brugler's
ability to practice dentistry. Defendants minimize the
importance of this opinion to their
determination. It was crucial.
Judith Cohen, after analyzing updated medical records that
Dr. Brugler had provided, spoke to Dr. Brugler's
attending physician, Dr. Steven Marks. In that telephone
call, per Dr. Cohen's notes, Dr. Marks “noted that
it would be reasonable to obtain a second opinion with a
pediatric ophthalmologist who could perform advanced depth
perception testing to better quantify Dr. Brugler's
functional ability.” Then Dr. Cohen, in concluding
that an independent medical examination would be necessary,
noted that “a neuroophthalmologist or strabismus
specialist would best be able to perform [certain] tests and
assess the insured's function, ” and suggested that
this specialist “correlate [test results] with how this
would impact function, ” “quantify the
insured's restrictions and/or limitations” and
explain the basis for the insured's limitations
“[or] inability to perform activities requiring depth
perception.” As reflected in his report, Dr.
Schaffer's conclusions included analysis of Dr.
Brugler's “inability to perform non-microscopic
dental surgery.” Janet Swenson, a benefits specialist
with Unum, informed Dr. Brugler's counsel that Unum would
be stopping benefits because “the information in Dr.
Brugler's claim file indicates he is able to perform the
duties of his occupation as a dentist.” Under a
heading of “Information That Supports Our Decision,
” Ms. Swenson cited the results of Dr. Schaffer's
independent medical examination as well as Dr. Schaffer's
analysis of Dr. Brugler's ability to perform
non-microscopic dental ...