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Johnson v. Harleysville Life Insurance Co.
United States District Court, E.D. Michigan, Southern Division
June 1, 2018
Precious Robert Johnson, Plaintiff,
Harleysville Life Insurance Co., Defendant.
ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE'S
F. COX UNITED STATES DISTRICT JUDGE
Plaintiff filed this action against Defendant, seeking
reinstatement of long term disability benefits under ERISA.
The matter has been referred to Magistrate Judge Steven
Whalen for all pretrial proceedings.
Plaintiff filed a Statement of Procedural Challenge, wherein
he made a request for limited discovery. After the parties
briefed the issues, the magistrate judge held a hearing. At
the hearing, the magistrate judge noted that he was
addressing a request for limited discovery beyond the
administrative record. He then heard oral argument as to two
issues: 1) discovery relating to Dr. Small; and 2) discovery
relating to whether the policy at issue was renewed, amended,
or revised. Only the first issue is relevant here.
As to the discovery relating to Dr. Small, the magistrate
noted that the plaintiff had shown implicit bias, but still
had to make a predicate showing beyond that before any
discovery would be appropriate. After considering the
arguments of both parties, the magistrate ruled as follows
with respect to the discovery sought relating to Dr. Small:
All right. Let me start with - actually, I'll start with
the spoiler alert. I'm going to grant in part and deny in
Now let me tell you what I'm going to grant and what
I'm going to deny in terms of the requests for discovery
outside the record.
Let's start with the information, you know, requested
about Dr. Small. We have talked about the - and UDC.
We have talked about the standard that there has to be some
kind of predicate showing, that the inherent bias isn't
enough, that the inherent bias, incidentally, in and of
itself, is something that can be considered by the Court when
it ultimately decides the issue of whether benefits were
But the - in your case, as I indicated, there was - there
were some pretty specific problems with Dr. Small's
report. The California cases, as counsel pointed out, on the
one hand, are - apart from the fact that they are not
binding, there was a specific relationship between Small
and/or between UDC and Hartford.
What we have here are a couple of things. One is this
conflict between Dr. Cooper's report and Dr. Small's
report, a conflict between the two doctors, one of whom works
for - you know, one of whom, against whom the information is
sought, and another doctor is not in and of itself sufficient
to support a request for discovery outside the record.
Looking at the California case, and I understand that
involved a different insurance company with perhaps a
different relationship, and it does raise a red flag in terms
of the marketing strategy and in terms of the claim that
it's - as I think I said, was defense friendly.
I'm going to permit some very limited discovery into the
issue of bias and it's not going to be as extensive as
what the plaintiff is asking for. It's not going to be
contracts between UDC and the defendant or the - I think UDC
and the defendant.
I will permit basically what was permitted in the New York
case, which are interrogatories as to, I think, what the
defense refers to as the batting averages, the number of
cases that Dr. Small/UDC has handled for Harleysville and the
ratio of disability opinions versus non-disability opinions.
It will be ...
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