United States District Court, D. Arizona
G. Campbell United States District Judge
Thomas Wood, M.D., filed a complaint against Defendant
Provident Life and Accident Insurance Company, alleging that
it violated the parties' contract by withholding certain
disability insurance benefits. Doc. 1-1 at
5-12. Each party has moved for partial summary
judgment on the cause of Plaintiff's disability. Docs.
46, 51. Plaintiff also asks the Court to reopen discovery
(Doc. 51 at 8), and Defendant asks the Court to strike some
of Plaintiff's evidence (Doc. 67 at 9-12). The motions
are fully briefed and, unfortunately, the Court has no time
available for oral argument before the month of July. Because
the Court does not wish to delay resolution of these motions
that long, and oral argument will not significantly aid the
Court's decision, the Court issues this order without
oral argument. Fed.R.Civ.P. 78(b); LRCiv 7.2(f). The Court
will grant partial summary judgment to Plaintiff.
Residual Disability and the Motion to Reopen
granted Plaintiff limited disability benefits after
determining that he is totally disabled due to a
“Sickness, ” as defined by the insurance policy.
Doc. 52-3 at 3. Defendant seeks summary judgment on two
issues: (1) whether Plaintiff is residually disabled, and (2)
whether an “Injury” caused Plaintiff's
disability. Doc. 46. Plaintiff contends that the Court should
not consider the first issue. Doc. 51 at 5-8.
argues that Defendant waived the residual disability argument
by not raising it as an affirmative defense. Doc. 51 at 5-6.
The Court is not persuaded, however, that the argument is an
affirmative defense. “An affirmative defense is a
defense that does not seek to negate the elements of the
plaintiff's claim, but instead provides a basis for
avoiding liability even if the elements of the
plaintiff's claims are met.” S. Gensler, Federal
Rules of Civil Procedure, Rules and Commentary to Rule 8
(2018) (citing cases). Plaintiff has the burden of proving
that he was entitled to full disability benefits under the
contract, something he cannot do if he fails to prove that he
was unable to work. The residual disability argument negates
an element of Plaintiff's claim, and is not an
even if the argument is an affirmative defense, the Ninth
Circuit has held that affirmative defenses are not waived if
they were unavailable when an answer was filed. See
Panaro v. City of N. Las Vegas, 432 F.3d 949, 952 (9th
Cir. 2005). Defendant plausibly demonstrates that it did not
learn Plaintiff was still working until after it filed an
answer and conducted discovery in this case. The Court
declines to find waiver.
initial claim investigation concluded that Plaintiff was
totally disabled. Doc. 52-2 at 2. Plaintiff contends that
this initial finding precludes Defendant from now arguing
that he is residually disabled. Doc. 51 at 6-7. Specifically,
Plaintiff argues that an insurer cannot change the basis for
its coverage decision during litigation “if the insurer
knew, or should have known of the additional basis for its
decision.” Id. at 6. The treatise Plaintiff
cites acknowledges that the relevant law varies among the
states. See Id. (citing Steven Pitt et al., 14 Couch
on Ins. § 198:54 (3d ed. 2017) (noting that “there
is contrary authority”)). Plaintiff appears to agree.
See Doc. 73 at 5 (noting that “[a]t least some
courts disagree” with the proposition that an insurer
can change its disability determination in subsequent
litigation). But Plaintiff does not cite, and the Court has
not found, any controlling Arizona law on this issue.
any event, Plaintiff does not meet the standard he proposes.
Plaintiff contends that Defendant knew or should have known
that he continued to work at the time it made its findings of
total disability in January and August 2016. Doc. 51 at 7.
Plaintiff emphasizes that Defendant interviewed his treating
physicians and reviewed voluminous records that included a
single note that Plaintiff had “stopped working as
much.” Id. (citing Doc. 47-4 at 88). Defendant
counters that Plaintiff impeded its initial disability
investigation by misrepresenting whether he had returned to
work after August 2015. Doc. 67 at 5. Specifically,
Plaintiff's application for disability benefits indicated
that he had not returned to work as an anesthesiologist. Doc.
47-2 at 26. Plaintiff also submitted monthly reports to
Defendant starting in January 2016 in which he represented
that he had neither returned to work nor “worked
anywhere for pay, profit, or any other type of
earnings.” Doc. 68-1 at 19-35. Plaintiff now concedes
that he performed some anesthesia procedures after his
alleged onset of disability and continued to earn income for
managing his business. Doc. 73 at 3; Doc. 52-4 ¶¶
Court concludes that a single treatment note indicating that
Plaintiff had “stopped working as much” did not
put Defendant on notice of the residual disability argument,
especially in light of Plaintiff's repeated
representations that he was not working. The doctrine of
estoppel does not apply.
also claims that Defendant did not reveal the residual
disability defense until January 26, 2018, when it filed its
motion for summary judgment. Doc. 51 at 5; Doc. 73 at 4. But
during the Court's pre-motion conference, Defendant
stated its intent to seek summary judgment on this ground.
Court's Livenote Tr. (Jan. 9, 2018). Plaintiff's
counsel acknowledged this argument and expressed his
intention to oppose it. Id.
Rule 56(d) Motion.
requests that the Court delay its ruling on residual
disability until the parties can complete at least 90 days of
discovery on the issue. Doc. 51 at 8. Rule 56(d) grants the
Court discretion to defer or deny a motion for summary
judgment in order to allow more time for discovery where the
opposing party “shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to
justify its opposition[.]” When making a Rule 56(d)
determination, the Court should consider “whether the
parties have diligently conducted discovery prior to the Rule
56(d) motion, whether they complied with the procedural
requirements of the Rule, and whether further discovery would
aid the party opposing summary judgment or merely delay the
proceedings.” Roosevelt Irrigation Dist. v. Salt
River Project Agric. Improvement and Power Dist., No.
2:10-CV-290-DAE (BGM), 2016 WL 3613278, at *2 (D. Ariz. Feb.
case, the parties do not dispute the diligence with which
Plaintiff conducted discovery prior to making this Rule 56(d)
motion. And the Court finds that any lack of preparation on
the residual disability issue was reasonable in light of the
narrow scope of the issues during the discovery period.
Defendant's initial claim evaluation resulted in a
finding that Plaintiff was totally disabled (Doc. 52-3 at 3),
and the parties identified a single issue for the first phase
of discovery and summary judgment briefing: whether a
Sickness or an Injury caused the disability (Court's
Livenote Tr. (Sept. 1, 2017)). This residual disability
argument apparently was first revealed on January 9, four
days after discovery had closed.
also has complied with the procedural requirements of Rule
56(d) by submitting a declaration of counsel specifically
stating the need for further fact discovery to adequately
respond to Defendant's residual disability arguments.
See Doc. 54-1. Plaintiff seeks to depose
Defendant's representative regarding its
“interpretation and application of the ‘residual
disability' provisions of the Policy.” Id.
¶ 6. Counsel states that this information will support
arguments that (1) Defendant has misapplied the Policy with
respect to its “residual disability” provisions,
and (2) Plaintiff's administrative work was so minimal
that it is immaterial to the disability determination.
Id. ¶ 7. The Court concludes that counsel
describes with sufficient particularity the facts he expects
to learn from the anticipated discovery and their value for
Court cannot conclude that the additional discovery sought by
Plaintiff will shed no light on the residual disability
issue. See Jones v. Blanas, 393 F.3d 918, 930 (9th
Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1018
(9th Cir. 1991)). The Court will grant Plaintiff's Rule
56(d) motion and deny the summary judgment motions on the
residual disability issue without prejudice to their refiling
after additional discovery.
Dr. Rovner's Expert Opinion.
contends that the timing of Dr. Robert Rovner's expert
disclosure requires the Court to preclude his opinion for
purposes of summary judgment. Doc. 67 at 10-11. Plaintiff
counters that he disclosed Dr. Rovner's opinion before
the Court's discovery deadline. Doc. 73 at 7-8.
Court's case management order identifies January 5, 2018,
as the deadline for the first phase of discovery. Doc. 14
¶ 4. Defendant received Dr. Rovner's expert
disclosure on January 2, 2018. Doc. 69-1 at 26-30. Defendant
contends that it should have received this disclosure at
least ten days earlier because Plaintiff received the expert
disclosure on December 18, but did not mail it to Defendant
until December 28. Doc. 67 at 10-11. Defendant also argues
that the January 2 disclosure was inadequate insofar as it
failed to include Dr. Rovner's prior testimony and fee
schedule. Id. at 11. Plaintiff supplemented his
disclosure to include that material, but not until January 8.
Doc. 69-1 at 32-34.
clear, Defendant does not request an opportunity to depose
Dr. Rovner, take further expert discovery, or present a
rebuttal opinion. Defendant asks only that the Court preclude
Dr. Rovner's opinion on the central issues of this case
because his disclosure arrived three days before the
deadline. Doc. 67 at 12. The Court declines to do so. The
Court set a short discovery schedule to precede summary
judgment motions on a potentially dispositive issue, and did
not put in place typical expert disclosure deadlines.
Plaintiff's expert disclosure was made before the
discovery deadline established in this shortened schedule. It
would be unduly punitive to preclude an expert opinion that
was disclosed within the discovery period. And as noted
above, preclusion is the only relief Defendant seeks - it
does not request further discovery or an opportunity to
present a rebuttal expert opinion.
Declarations of Treating Physicians.
asks the Court to strike the declarations of Drs. Edward
Prince, Jon Obray, and Kade Huntsman. Doc. 67 at 9-12. This
case is subject to the Mandatory Initial Discovery Pilot
Project (“MIDP”). Doc. 14 ¶ 1. The MIDP
requires that initial disclosures identify persons who
“are likely to have discoverable information relevant
to any party's claims or defenses, and provide a fair
description of the nature of the information each such person
is believed to possess.” Gen. Order 17-08 ¶ B(1).
The MIDP also requires parties to disclose any written
statement “relevant to any party's claims or
defenses . . . if it is in your possession, custody, or
control.” Id. ¶ B(2). If a party
identifies supplemental information after its initial
disclosure, that party must supplement its response “in
a timely manner, but in any event no later than 30 days after
the information is discovered by or revealed to the
party.” Id. ¶ A(8). “[F]ull and
complete supplementation must occur by the [discovery]
initial disclosure identified Drs. Prince, Obray, and
Huntsman as persons with “discoverable information
regarding Plaintiff's injury, and his treatment of
Plaintiff's injury.” Doc. 73-5 at 3; see
Doc. 73-5 at 4-5. But Plaintiff did not disclose their
declarations until the summary judgment briefing process.
See Docs. 52-7, 52-8, 60-1, 67 at 9-11. Defendant
asserts a violation of the MIDP and asks the Court to strike
what it characterizes as “untimely” evidence.
Doc. 67 at 9-11.
Court finds no error. The MIDP requires timely disclosure of
written statements in a party's “possession,
custody, or control.” Gen. Order 17-08 ¶ B(2).
Each of the declarations was executed after the January 5,
2016, discovery deadline. See Doc. 52-7 (February
21, 2018, for Dr. Huntsman), 52-8 (February 23, 2018, for Dr.
Obray), 60-1 (March 2, 2018, for Dr. Prince). And Plaintiff
revealed each statement within 30 days of its execution.
See Doc. 52-7 (2 days for Dr. Huntsman), 52-8 (same
day for Dr. Obray), 60-1 (12 days for Dr. Prince).
next argues that each of the declarations contains
impermissible opinion testimony that Plaintiff did not
disclose pursuant to Rule 26(a)(2). Doc. 67 at 12.
Disclosures under Rule 26(a)(2)(A) must include the
identities of treating physicians who have not been specially
employed to provide expert testimony in this case, but who
will provide testimony under Federal Rules of Evidence 702,
703, or 705. A Rule 26(a)(2)(B) report is required for any
opinion of such witnesses that was not developed in the
course of their treatment. See Goodman v. Staples the
Office Super Store, LLC, 644 F.3d 817, 826 (9th Cir.
2011). Thus, Plaintiff may not call any treating physician to
render an expert opinion that was not developed in the course
of treatment unless that opinion was set forth in a Rule