Hill v. Lincoln Financial Group et al

REPLY to Response to Motion re MOTION for Summary Judgment

W.D. Ark.October 11, 2018

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION JOHN HILL, Plaintiff, v. LINCOLN FINANCIAL GROUP, et al., Defendants. ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-1059-SOH Electronically Filed DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION In his Response in Opposition to Defendants' Motion for Summary Judgment, Plaintiff must "set forth specific facts showing that there is a genuine issue for trial" to defeat Defendants' Motion for Summary Judgment. Fed. R. Civ. P. 56(e). Plaintiff has utterly failed in this regard. His Response does not cite to any facts in the record. Plaintiff fails in all respects to refute: (1) facts establishing that Plaintiff is not disabled, and (2) facts establishing that Plaintiff does not have the condition that he claims renders him disabled -- Lyme Disease. Plaintiff's failure to meet the standard set forth under Rule 56 for responding to a motion for summary judgment means that Defendants are entitled to judgment as a matter of law and dismissal of Plaintiff's claims with prejudice. II. ARGUMENT A. Defendants Are Entitled to Summary Judgment Based On Plaintiff's Failure to Identify A Dispute as to Any Material Fact. In his Response, Plaintiff has not submitted any facts supported by affidavit or deposition testimony supporting his claim that Defendants breached the LTD Policy when Lincoln National denied his claim for long term disability benefits. Instead, faced with the undisputed facts Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 1 of 8 PageID #: 2501 2 Defendants recited in their Memorandum in Support of their Motion for Summary Judgment that establish that Plaintiff was not Totally Disabled under the LTD Policy, Plaintiff simply asserts: "The Plaintiff chooses not to respond to the character assassination attempts by the Defendant." Response p. 3. To oppose a motion for summary judgment, Plaintiff must respond with citations to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” or a demonstration “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. Rule Civ. P. 56(c)(1). Plaintiff cannot rest upon mere denials and objections to evidence in response to a motion for summary judgment without making specific reference to the record supporting the dispute of the fact. See Vitela v. IndyMac Mortg. Services, 4:13CV747 JAR, 2014 WL 2863147, at *3 (E.D. Mo. June 24, 2014); Buck v. American Family Mut. Ins. Co., 4:12CV1879 SNLJ, 2014 WL 272343, at *3 (E.D. Mo. Jan. 24, 2014); O'Connor v. City of Pine Lawn, 4:11CV668 SNLJ, 2013 WL 1899431, at *1 (E.D. Mo. May 7, 2013). Although the non-moving party is entitled to have all reasonable inferences resolved in his favor, the non-moving party nevertheless must present specific facts showing a genuine issue for trial. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207 (8th Cir.2013). The non-moving party must present “sufficient probative evidence” capable of supporting a finding in his favor, not “mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quoting Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc)). Plaintiff refuses to address the undisputed facts recited by Defendants because he characterizes such facts as "character assassination." Plaintiff's characterization is remarkable Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 2 of 8 PageID #: 2502 3 considering much of the evidence Defendants cited is Plaintiff's own deposition testimony or is from records prepared by LPL Financial related to his relationship with LPL Financial and from records and sworn statements regarding an investigation related to Plaintiff's misconduct that was performed by the Arkansas Securities Department. Regardless, Plaintiff's refusal to dispute the cited undisputed facts is fatal to his case. Under Rule 56, Defendants are entitled to summary judgment and dismissal with prejudice of Plaintiff's claims. B. Defendants Are Entitled to Summary Judgment Because Plaintiff's Response Was Late, With No Claim of "Excusable Neglect." Defendants filed their Motion for Summary Judgment and supporting documents in this case on September 12, 2018. [Doc. 44]. According to the Final Scheduling Order entered into in this case (as amended by the Court's Order entered on March 14, 2018 [doc. no. 32]), as well as Local Rule 7.2(b), Plaintiff's response was due on September 27, 2018. On October 4, 2018, the Court entered a show cause order requiring Plaintiff to show cause why a response had not been filed. Instead of responding to the Court's Show Cause Order as required, Plaintiff filed his Response to Defendants' Motion for Summary Judgment on October 4, 2018, with no explanation or excuse as to why his response was a week late. The Court should not consider Plaintiff's Response because it is untimely. The Court has the discretion to extend the time for Plaintiff to respond based on a showing of good cause/excusable neglect. Fed. R. Civ. P. 6(b); Mortensblak v. Butler, 102 F.Supp.3d 1085, 1091 (D.S.D. 2015). Before the time period to file a brief has elapsed, a court may extend the time period, with or without a motion or request by a party. Fed. R. Civ. P. 6(b)(1)(A); Mortensblak, 102 F.Supp.3d at 1091. But once the time period has elapsed, a court may extend the time only upon a motion by the party who failed to timely act, and only if the failure was a result of "excusable neglect." Fed. R. Civ. P. 6(b)(1)(B). In the present case, Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 3 of 8 PageID #: 2503 4 Plaintiff did not file a separate motion for an extension of time to file his Response and he has not offered any explanation or described any circumstances that would constitute "excusable neglect" to file his Response late. Accordingly, the Court should strike Plaintiff's response as untimely and should not consider it in connection with its adjudication of Defendants' Motion for Summary Judgment. C. If the Court Considers Plaintiff's Response, The Court Should Disregard Those Portions of Plaintiff's Response That Do Not Constitute Admissible Evidence. In deciding a motion for summary judgment, a Court may consider only admissible evidence. Fed. R. Civ. P. 56(e). The court must disregard portions of declarations that were made without personal knowledge, consist of hearsay, or purport to state legal conclusions of fact. See Shaver v. Independent Stave Co., 350 F.3d 716, 723 (8th Cir. 2003); Fed. R. Civ. P. 56(e). Here, Plaintiff did not bother attaching any declarations. Rather, his Response appears to be based on his own opinions about Lyme Disease, sprinkled with a few inadmissible references, such as a reference to an alleged Facebook page of one of Defendants' expert witnesses, Dr. Eugene Shapiro. Because the purported Facebook page is not authenticated, it would not be admissible in Court, and therefore the Court should not consider it and should strike it from the record. Similarly, large portions of Plaintiff's brief are not supported by any citations to the record, to case law, to statutes, to legal treatises, or to anything else. For example, an entire section of Plaintiff's brief entitled "Lyme Disease Controversy" begins with the following introductory phrase: "According to numerous sources," and then opines about the prevalence of Lyme Disease. Plaintiff does not cite these "numerous sources" he references and he is not qualified as an "expert" to offer expert opinion testimony regarding the prevalence of Lyme Disease in one area or another. Plaintiff goes on to make completely unsupported accusations Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 4 of 8 PageID #: 2504 5 about Dr. Shapiro's involvement in the Infectious Disease Society of America ("IDSA")1, claiming that the IDSA "with Dr. Shapiro's involvement, deepen the controversy by completely rejecting the use of medical discretion to diagnose patients and the use of long-term treatment." Response at p. 2. Plaintiff goes on to provide his unsubstantiated argument that the IDSA's guidelines (in this case, the guideline regarding the diagnosis and treatment of Lyme Disease that was co-authored by Dr. Shapiro) are used by insurers, and then states, again with no citation to any fact in the record, affidavit, or other admissible materials, that "the campaign is used by the Defendant in this case to prevent the Plaintiff from receiving the care, treatment, and disability that his contract provides." Response p. 2. There is nothing in the record to support this argument, and Plaintiff does not cite to anything. Likewise, Plaintiff attaches a Proclamation from the State of Arkansas regarding the designation of May 2018 as "Lyme and Tick-Borne Diseases Awareness Month." He claims that this declaration contradicts the position of Defendants and Dr. Shapiro "that Lyme disease does not exist in Arkansas and therefore Plaintiff could not be infected with Lyme Disease or be disabled." Response p. 3. Dr. Shapiro did not say in his declaration that Lyme Disease does not exist in Arkansas; rather, he stated that "Plaintiff lives in a non-endemic part of the United States" so "it is very unlikely that [Plaintiff] would develop Lyme disease or other tick-borne illness simply because infected ticks are not prevalent in Arkansas." Declaration of Eugene Shapiro ¶ 6, attached to Defendants' Motion as Exhibit 2 [Doc. 44-3]. In fact, the language of the Proclamation actually supports Dr. Shapiro's statement, as it states: "Although the Centers 1 The IDSA "is a community of over 11,000 physicians, scientists and public health experts who specialize in infectious disease. [Its] purpose is to improve the health of individuals, communities, and society by promoting excellence in patient care, education, research, public health, and prevention relating to infectious disease." https://www.idsociety.org/about-idsa/about-idsa/. Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 5 of 8 PageID #: 2505 6 for Disease Control and Prevention classifies Arkansas as a low incidence state for Lyme disease, it is important to report any signs of Lyme disease or other tick-borne illnesses to your doctor immediately." See Pl. Response, Ex. 3. This Proclamation, while interesting for its recognition that Lyme disease-carrying ticks are not prevalent in Arkansas, certainly does not provide evidence of and is not probative in any manner with respect to whether Plaintiff has Lyme Disease or that he is disabled. The sections of Plaintiff's brief entitled "Disability Factual Dispute" and "Plaintiff's Medical Issues" also are devoid of any citations to the record, and therefore also should be disregarded. Plaintiff makes wholly unsupported claims about Lincoln National's actions and motives -- there are no citations to deposition testimony, to declarations, or to any other evidence. He also recites a long list of symptoms that he claims he has, again, without any citation to the record to substantiate this claim. Plaintiff again failed to support his opposition with any facts. He simply argues that Defendants were wrong. This argument is not sufficient to defeat summary judgment in favor of the Defendants. Furthermore, Plaintiff argues that he "is now disabled as evidenced by his medical providers and the expert witnesses he has disclosed in this case." Response p. 4. Plaintiff has not properly disclosed any expert witnesses in this case. Although Plaintiff served Lincoln National with what he purported to be "expert disclosures" on December 12, 2017, this disclosure consisted of nothing more than a list of six physicians that he claims are expert witnesses. Plaintiff never produced a written report as required by Rule 26(a)(2)(B) or even a disclosure that complies with Rule 26(a)(2)(C). The deadline for disclosure of expert witnesses was no later than May 15, 2018 (90 days prior to the close of Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 6 of 8 PageID #: 2506 7 discovery August 13, 2018).2 Plaintiff missed that deadline and may not make a compliant disclosure now at this late date. See Rule 26(a)(2)(D) ("A party must make these disclosures at the times and in the sequence that the court orders"). Because Plaintiff failed to timely and appropriately disclose any expert witnesses, Plaintiff cannot offer any expert testimony in opposition to Defendants' Motion or at trial. Plaintiff spends three pages of his Response attempting to respond to the declaration by Dr. Campbell submitted by Defendants in support of their motion for summary judgment. Significantly, Plaintiff does not offer any countervailing declaration or other facts in response. The section of his Response, entitled "False Positive and Unfair Practices," should therefore be disregarded. The same is true for the section of his brief entitled "Chronic Lyme Disease Defined by Dr. Shapiro." In this section, Plaintiff cites to two articles authored by Dr. Shapiro, but he fails to make any connection between these articles and Plaintiff's opposition to Defendants' motion for summary judgment or to show how these articles create genuine issues of material fact that preserve Plaintiff's claims for trial. III. CONCLUSION Plaintiff ends his Response by claiming that "there are numerous questions of fact to be decided by a jury." But merely saying it does not make it so. Plaintiff was obligated to support 2 In the original Final Scheduling Order, the Court closed discovery on March 12, 2018. Expert disclosures were required to be provided by no later than 90 days prior to March 12, 2018 or by no later than December 12, 2017. However, by Order entered March 14, 2018 [doc. no. 32], the Court required Plaintiff to "supplement his December 12, 2017, initial expert witness disclosures in accordance with the Federal Rules of Civil Procedure. Despite the Court's Order, Plaintiff has never supplemented his list of potential expert witnesses by providing the material and other information that is required by the Federal Rules of Civil Procedure. In addition, the Court also extended all deadlines in the Court's Final Scheduling Order that had not passed by February 22, 2018. Because the initial discovery cut-off was March 12, 2018, a liberal interpretation of the Court's March 12 Order extended the discovery cut-off until August 13, 2018. Plaintiff failed to comply with even this more liberal reading of the Court's March 12, 2018 Order. Consequently, Plaintiff should be barred from offering any expert testimony in this case in opposition to summary judgment, at trial or for any other purpose. Case 1:16-cv-01059-SOH Document 49 Filed 10/11/18 Page 7 of 8 PageID #: 2507 8 his argument with facts supported by affidavit or deposition testimony. He has completely failed to do so. To the extent the Court considers Plaintiff's Response at all (which it should not, since the Response was late, with no motion requesting an extension and no reason provided for its lateness), the Court should grant summary judgment for Lincoln National, dismissing Plaintiff's claim of breach of contract. Dated: October 11, 2018. Respectfully submitted, /s/ John M. Scannapieco John M. Scannapieco Martha L. Boyd BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 211 Commerce Street, Suite 800 Nashville, Tennessee 37201 (615) 726-5648 jscannapieco@bakerdonelson.com mboyd@bakerdonelson.com CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 11, 2018, a true and correct copy of the foregoing was filed in the Court’s electronic filing system, which sent notice of the filing to the following attorney of record: Travis Berry, Esq., Law Offices of Travis Berry, 901 Main Street, Arkadelphia, Arkansas 71923. /s/ John M. Scannapieco John M. Scannapieco, Esq. 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