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"The dining room staff were ok we ate 5 meals there and two of the staff we very pleasant, but the bus boy was quite rude, both morning"
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"Excellent location, no charge for parking, very clean and modern, very friendly courteous staff, good quality complementary coffee and tea. Ready to eat economical home cooked meals available at Cains Deli across the street"
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"This B&B was an amazing value in a prime location. The room was funky and cool and comfortable. I really liked it. I would stay here again in a heartbeat. A couple of caveats, though. It might not be for everyone. It's a B&B, it's not hotel levels of pampering. You opt in to housekeeping each ..."
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"Great location. Roomy, quiet, and well stocked. Desiree was very helpful."
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"Very elegant rooms. The staff are very helpful and accommodating. this hotel has it all. "
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"The Narrows is a beautiful 3 story colourful row house within a block or two of a lively and fun downtown area with lots of shops and restaurants. We loved the location. The owner Ann was very helpful in ensuring our stay was exceptional, letting us and all the other guests know how to maximize..."
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"We had a great stay at Balmoral House. The home is warm and welcoming. Our room was very comfortable and quiet. The owners live off site which was a bit unusual based on our previous B&B experience. Kim was in the house each morning to greet us with fresh coffee and breakfast. The other guests we..."
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Map of hotels near National War Memorial
- Mile One Centre
- Visitor Information Center City of St.John's
- St. Clare's Mercy Hospital
- Memorial University of Newfoundland
- Avalon Mall
- Signal Hill
- Railway Coastal Museum
- Baily Hally Golf Course and Curling Club
- Commissariat House
- Suncor Energy Fluvarium
- St. John's Courthouse
- Johnson Geo Centre
- Clovelly Golf Club
- Basilica Cathedral of St. John the Baptist
- St. John's Government House
- Harbourside Park
- Memorial University of Newfoundland Botanical Garden
- Quidi Vidi Battery
- Leyton Gallery of Fine Art
- Fort Amherst Lighthouse
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text: This is probably a really easy fix, and it's primarily my fault that I didn't prepare better. Basically I was using the great Categories app, which, as some of you know, lets me organize my icons into folders. When I updated to firmware to 3.0 today, I lost all the icons to my Cydia apps. I was originally just going to reinstall them, hoping the settings would all still be there. The problem though is that Cydia was in a folder Category, so now I can't access it. Is this as easy as just SSHing into the Applications folder and copying the apps back? And if so, while all the app settings remain?

subset: commoncrawl


text:
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Illinois Court of Appeals, District 1 SIXTH DIVISION
December 23, 2010
LUIS SAN ROMAN AND MIGUEL SAN ROMAN, PLAINTIFFS-APPELLANTS,v.CHILDREN'S HEART CENTER, LTD., D/B/A RUSH CHILDREN'S HEART CENTER, AND CARLOS E. RUIZ, M.D., , DEFENDANTS-APPELLEES.
Appeal from the Circuit Court of Cook County Honorable Jennifer Duncan-Brice Judge Presiding
JUSTICE McBRIDE delivered the opinion of the court: In this medical malpractice action, the plaintiff minor patient and his father appeal from an adverse judgment, arguing a subsequent treating physician should not have been allowed to testify for the defendant physician and that jury instructions improperly referred to the standard of care of a well-qualified "pediatric interventional cardiologist," which is not a board-certified medical specialty. They also contend the judgment is contrary to the manifest weight of the evidence or, in the alternative, the cumulative effect of the two errors was so prejudicial that the trial was not fair.
The following facts are disclosed by the record on appeal. Plaintiff
Luis San Roman was born in 1986 in Madrid, Spain, with cyanosis -- he
was a "blue baby" -- suffering from a heart condition which deprived
his body of oxygen and is known as transposition of the aorta or
transposition of the great arteries. In a normal heart, oxygen-poor
blood returns from the body to the right atrium, travels to the right
ventricle, is pumped through the pulmonary artery into the lungs,
where it picks up oxygen, and oxygen-rich blood travels from the lungs
to the left atrium,
into the left ventricle, and is pumped through the aorta out
to the body. In Luis' heart, however, two, nearly separate
circulations formed in which oxygen-poor blood flowed from the right
atrium directly to the aorta where it returned to the body, and
oxygen-rich blood flowed from the left atrium right back to the lungs.
He also, however, suffered from stenosis (narrowing) of the pulmonary
artery, and introducing a Blalock-Taussig shunt within weeks of his
birth facilitated a weak but normal exchange of blood through his
heart. The blood flow was made more efficient by Rastelli surgery when
Luis was five, in which a donor artery was used to connect his right
ventricle to his pulmonary artery and an artificial baffle and
homograft (donor tissue) were inserted to connect his left ventricle
to his aorta. It was anticipated that Luis would outgrow the baffle
and would need further surgery. This was Luis' situation by the time
he was 13, when the San Roman family was residing in Barcelona, Spain.
On June 22, 1999, in an attempt to delay open heart surgery, defendant Chicago surgeon Carlos E. Ruiz, M.D., who was then employed by defendant Children's Heart Center, Ltd., at Rush-Presbyterian-St. Luke's Medical Center, used a heart catheterization process to insert a stent in Luis' left ventricle. The procedure was not successful, Luis' mitral valve was torn during the attempt, he went into heart failure, and he suffered a series of strokes (which are a known risk in any cardiac procedure). He underwent open heart surgery and he spent about a month in the hospital. Examinations by a cardiologist and a neurologist five weeks later indicated Luis was emotionally traumatized by his experience and that long-term physical concerns included vision abnormalities and potential cognitive deficits.
In 2001, Luis and his father Miguel sued Ruiz and Ruiz's employer,
contending the doctor
recommended and performed the catheterization without
informing the San Roman family it was experimental and very risky and
that open heart surgery would have been the better choice. In their
second amended complaint, filed after Luis turned 18, he sought
damages for medical negligence and his father sought damages pursuant
to the statute commonly known as the family expense act. 750 ILCS
65/15 (West 2000).
On August 28, 2001, Ruiz's defense attorney retained physician James E. Lock, M.D. of Children's Hospital Boston and forwarded unspecified documents for his review. In June 2003, a Chicago surgeon who began treating Luis after the failed catheterization referred Luis to Lock as the more experienced practitioner. Without informing the San Roman family that he was assisting the defense attorney, Lock performed a catheterization procedure on the teenage boy in July 2003. The San Roman family updated their attorney about Luis' care, the attorney relayed this information to the defense attorney, and the defense attorney contacted Lock on August 21, 2003, to confirm that he had treated or was treating Luis. On August 25, 2003, Lock verbally confirmed to defense counsel that he performed the procedure on Luis in July 2003. After this confirmation, Lock continued to assist the defense but neither he nor defense counsel advised the San Roman family or their attorney of the relationship.
Instead, on September 12, 2003, Ruiz filed a motion for protective
order seeking the defense attorney's "right to continue to use Dr.
James Lock as his retained consultant as has been the case for the two
years before 'treating physician' status occurred."*fn1
Ruiz indicated Lock's
established role was "to consult on and review this matter
and provide his expert opinion regarding the treatment given to
[Luis]." Ruiz argued that "if a plaintiff's later occurring
physician-patient relationship arrangement could be held to preclude
defendant's previously established consulting relationship with a
retained expert, plaintiffs would always establish such a relationship
to defeat defendant's ability to communicate with its retained
experts." Accordingly, the defense attorney wanted "to communicate
with Dr. James Lock outside the confines of formal discovery
procedures with the exception of matters related to his care and
treatment of [Luis] which [the attorney assured the judge] would be
conducted only pursuant to *** Supreme Court Rule 201." Ruiz concluded
with a request for "a protective order allowing the defendant's
counsel to communicate with Dr. James Lock pursuant to the authorized
methods of discovery outlined by Supreme Court Rule 201." Within a
week, on September 19, 2003, the defense attorney drafted and
presented an agreed order for the judge's entry without a hearing. The
meaning of this order is currently in dispute:
This matter coming to be heard on defendant CARLOS RUIZ, M.D.'s Motion for Protective Order, due notice having been given and the court being advised in the premises, it is hereby agreed by the parties and ordered as follows:
1. [The motion] *** is granted. Defendant DR. RUIZ (and his attorneys and representatives) may continue to retain, consult with and communicate with his retained consulting pediatric cardiology expert Dr. James Lock as to any and all matters relating to the care and treatment of the plaintiff LUIS SAN ROMAN rendered by DR. RUIZ and others at Rush-Presbyterian-St. Luke's Medical Center and any and all medical conditions, alleged injuries and damages flowing therefrom before the care and treatment rendered by Dr. James Lock or others at Boston Children's Hospital to the plaintiff LUIS SAN ROMAN.
2. Nothing in this order authorizes defense counsel or representatives of defendant CARLOS RUIZ, M.D. to obtain medical records or information through means other than formal discovery ***."
Although lawyers on both sides of the case were now aware of Lock's dual relationship, the San Roman family was not when Lock rendered "some brief follow-up [to Luis] in 2004."
Luis celebrated his eighteenth birthday on June 1, 2004.
The San Romans' attorney deposed Lock in late July 2005 and learned that he had never disclosed to the family or their referring physicians that he was helping Ruiz's attorney. Up until that point, the San Romans' attorney believed his clients had been advised of Lock's dual role.
On November 17, 2005, the San Romans filed a motion to bar Ruiz and
his attorneys from any further ex parte communication with Lock and to
bar Lock from testifying for the defense, on grounds that the
physician-patient relationship created a duty of confidentiality, and
to compel production of all communications which had occurred, so Luis
could determine if his confidences had been breached. The Children's
Heart Center and Ruiz filed separate responses to the motion to bar
and compel, in which they argued defense counsel had not knowingly
communicated with Luis' treating physician in violation of Petrillo v.
Syntex Laboratories, Inc., 148 Ill. App. 3d 581,
499 N.E.2d 952 (1986), and that the San Romans waived a
Petrillo objection by entering into the agreed order. In a written
order entered on January 18, 2006, the trial judge denied the motion,
reasoning that parties act through their lawyers, and in this case,
the lawyers agreed to the order entered on September 19, 2003, which
"granted defendant Dr. Ruiz the right to continue to utilize Dr. Lock
as his retained expert." The judge rejected for lack of evidence the
suggestion that Lock deliberately and dishonestly withheld from the
San Romans that he had become an expert for the defendants and that
the San Romans would have acted differently if told. The judge also
remarked upon the gap between the agreement and the motion to bar and
compel, and found the San Romans had delayed in bringing the motion
and waived their objection. A motion for reconsideration provided the
judge with affidavits from Luis, his father Miguel, and his
grandfather Pedro Gomendio, who was the most conversant in English and
had been involved in Luis' medical care, including the family's
presurgical conference with Ruiz in Chicago in 1999. The three
gentlemen swore that Lock failed to inform them of his association
with the defense, and if they had been so informed in July 2003, they
would have immediately terminated the relationship with Lock and
contacted their attorneys. The judge denied the motion on March 21,
2006, emphasizing the agreement between counsel and concluding that
"as this case is nearing its end" it is too late to complain and
"[p]laintiffs have waived their rights under Petrillo." The San Romans
petitioned the Illinois Supreme Court for a supervisory order
regarding Lock's association with and testimony for the defense, but
the supreme court denied the request.
On March 16, 2007, in compliance with the rules regarding pretrial
discovery, Ruiz tendered his witness list indicating Lock would
testify both as an independent expert witness
pursuant to Rule 213(f)(2) in his capacity as Luis' treating
physician and as a controlled expert witness pursuant to Rule
213(f)(2) opining on Ruiz's treatment of Luis. 210 Ill. 2d 213(f).
A year and a half after that, a jury trial commenced on August 1, 2008, and ended in a verdict for Ruiz and the Children's Heart Center on August 15, 2008. The San Romans' posttrial motion was denied in a written order dated April 23, 2009.
The San Romans' main argument on appeal is that Lock should not have been allowed to testify as a defense witness. They contend the trial judge erroneously denied this aspect of the motion to bar and compel, because the judge misconstrued the nature of the parties' underlying agreed order. The family contends it is quite apparent the agreed order provided only for Lock to continue as Ruiz's "consulting" expert regarding the treatment rendered at Children's Heart Center and did not in any way contemplate that Lock would later testify at trial adverse to his own patient. The family contends their claims were doomed once Lock took the stand against Luis and that the strong prejudicial effect of his testimony warrants a new trial.
The San Romans cite Petrillo, a lawsuit about defective infant
formula, which they acknowledge is factually distinguishable.
Petrillo, 148 Ill. App. 3d 581, 499 N.E.2d 952. In that case, defense
counsel intentionally circumvented the conventional methods of
discovery outlined in Supreme Court Rule 201, such as an oral
deposition, written interrogatories, and document requests (166 Ill.
2d R. 201), and pursued private, ex parte conferences with the
plaintiff's treating physicians, insisting this was a proper,
cost-effective, and necessary way to obtain their true opinions.
Petrillo, 148 Ill. App. 3d at 584, 499 N.E.2d at 954. In the current
case, since no one is suggesting defense counsel had improper contact
with Luis' treating physician, Petrillo's
specific holding is distinguishable. However, the court's
rationale for prohibiting ex parte contact without prior consent is
pertinent. The court emphasized that the patient and society have an
expectation of confidentiality which is reflected in the Hippocratic
Oath, which speaks of " 'secre[cy],' " the ethics principles of the
American Medical Association which obligate a physician to "
'safeguard patient confidences,' " and opinions of the association's
ethics and judicial panel which insist that patient disclosures are to
be kept " 'confidential to the greatest possible degree.' " Petrillo,
148 Ill. App. 3d at 589, 499 N.E.2d at 957-58. The profession's
guidelines, in fact, "dictate that the physician owes his patient an
obligation of honesty as well as confidentiality." (Emphasis in
original.) Petrillo, 148 Ill. App. 3d at 589, 499 N.E.2d at 958. The
court also found guidance in case law indicating that a special
relationship forms between a doctor and patient. It is well-settled in
Illinois and other jurisdictions that a fiduciary relationship arises
between doctor and patient. Petrillo, 148 Ill. App. 3d at 594, 499
N.E.2d at 961; T. Boyd, Cost Containment and the Physician's Fiduciary
Duty to the Patient, 39 D.P.L.L.R. 131, 135 (Fall 1989) ("No authority
may seriously dispute that physicians owe a fiduciary duty to their
patients"). A fiduciary is "duty bound to act with the utmost good
faith for the benefit of the other [party]." Abbott v. Church, 288
Ill. 91, 97, 123 N.E. 306, 308 (1919); Petrillo, 148 Ill. App. 3d at
594, 499 N.E.2d at 961. "Essentially, this means that a physician must
place the interests and well-being of the patient above his or her own
interest." T. Boyd, Cost Containment and the Physician's Fiduciary
Duty to the Patient, 39 D.P.L.L.R. 131, 135-36 (Fall 1989). The
physician is expected to always "deal honestly with his patient and
thereby avoid engaging in conduct that undermines the fiducial nature
of the relationship." Petrillo, 148 Ill. App. 3d at 594,
499 N.E.2d at 961.
Petrillo relied in part on Alexander, which involved a two-car collision and a jury award which the trial court overturned as "calloused" and "palpably inadequate." Alexander v. Knight, 177. Pa. Super. 79, 177 A.2d 142, 147 (1962) (per curiam); Petrillo, 148 Ill. App. 3d at 595, 499 N.E.2d 961. One of the problems the court identified was that a treating physician wrote a report for the defense indicating his patient's recovery " 'should be very good' " but was impeded by pre-existing emotional problems. Alexander, 177 A.2d at 145. The doctor never told his patient that he was assisting the other driver and accepted a fee that was the equivalent of 10 doctor's office visits. Alexander, 177 A.2d at 146 (stating physician's fee for five office visits and physician's fee for writing report). He testified at trial that he wrote the report and, with the plaintiff's own doctor seemingly against her, the defense attorney then "very ably" portrayed the plaintiff to the jury as an "emotionally disturbed woman who *** exaggerated her complaints [and] permitted her emotional instability to prolong her illness." Alexander, 177 A.2d at 147. The court found this characterization inappropriate, stating, "An emotionally ill person does not 'permit' [prolonged] *** illness; such illness is real not feigned." Alexander, 197 Pa. Super. 79, 177 A.2d at 147. Although the doctor's report was not the most "significant" error that occurred, the court expressed its displeasure with him and with the doctor that helped the defense solicit reports from the plaintiffs' treaters:
"We are of the opinion that members of *** the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient's antagonist in litigation. The doctor, of course, owes a duty to conscience to speak the truth; he need, however, speak only at the proper time. Dr. Ezickson's role in [soliciting the report and] inducing Dr. Murtagh's breach of his confidential relationship to his own patient is to be and is condemned." Alexander, 197 Pa. Super. 79, 177 A.2d at 146. Petrillo also cited Miles, a medical malpractice action in which the court held that a doctor who treated the plaintiff both before and after being retained as one of the defendant's expert witnesses had breached the duties of loyalty, confidentiality, and affirmative disclosure that he owed to his patient. Petrillo, 148 Ill. App. 3d at 595, 499 N.E.2d 961; Miles v. Farrell, 549 F. Supp. 82, 84-85 (N.D. Ill. 1982). Even if the dual relationship began inadvertently, the doctor "had a clear conflict of interest which he had an obligation to disclose to his patient." Miles, 549 F. Supp. at 84. Allowing the doctor to subsequently take the witness stand for the defense was untenable and in the court's opinion, "the mere fact that he takes the stand as an expert employed by the defendant assures that his position is adverse to that of his patient." Miles, 549 F. Supp. at 85.
Thus, Petrillo concluded that ex parte communications between a
plaintiff's treating physician and defense counsel "are prohibited as
against public policy because they jeopardize the sanctity of the
confidential and fiducial physician-patient relationship." (Emphasis
in original.) Mondelli v. Checker Taxi Co., 197 Ill. App. 3d 258, 261,
554 N.E.2d 266, 270 (1990) (discussing
extent of the Petrillo doctrine). The patient "should have
the right to expect that his physician will provide the medical
information sought by the patient's adversary pursuant only to court
authorized methods of discovery." (Emphasis omitted.) Petrillo, 148
Ill. App. 3d at 595, 499 N.E.2d at 961. Discussion of the patient's
confidences under circumstances other than through formal discovery is
prohibited because it "could be inconsistent with the duties of a
fiduciary" and is "potentially harmful to the interests of the patient
in that the physician might disclose intimate facts of the patient
which are unrelated and irrelevant to the mental or physical issue
placed at issue in the lawsuit." (Emphasis added.) Petrillo, 148 Ill.
App. 3d at 595, 499 N.E.2d at 595. "A plaintiff should be allowed to
protect his physician-patient privilege before it is compromised."
(Emphasis in original.) Mondelli, 197 Ill. App. 3d at 261, 554 N.E.2d
at 270.
A physician should not be in the position of deciding what patient information is subject to disclosure and what information remains privileged. Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986); Harlan v. Lewis, 982 F.2d 1255, 1264 (8th Cir. 1993). A medical professional is not trained to make that determination. Roosevelt Hotel, 394 N.W.2d at 357 ("Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician"). Limiting contact to formal discovery relieves the doctor of this responsibility and protects the patient's interests. Roosevelt Hotel, 394 N.W.2d at 357; Harlan, 982 F.2d at 1264.
Consistent with this reasoning, in Mondelli, the court held that even a treating physician's office partner was barred from ex parte communication with the defense attorney. Mondelli, 197
Ill. App. 3d at 261-67, 554 N.E.2d at 270-73 (applying the "physician-patient privilege rule enunciated in Petrillo").
The San Romans cite this line of authority for the proposition that Lock allowed a conflict of interest to arise, violated the duties of confidentiality and loyalty he owed to Luis, and should have been barred from taking the witness stand as an expert against his own patient. Acknowledging that Ruiz and his attorneys probably did not knowingly violate the Petrillo doctrine, the San Romans point out how improbable it is that the Boston doctor did not realize his teenage Spanish patient with subaortic stenosis was the same teenage Spanish patient with subaortic stenosis who was suing Ruiz. The defense benefitted from Lock's intentional wrongdoing, while Luis and Miguel were prejudiced. If Lock had been barred, the defense would have suffered the inconvenience of finding a new expert, but the public policy behind Petrillo would have been honored.
Ruiz responds that Petrillo can be distinguished as a case in which the plaintiffs did not consent to their physicians talking to the defense attorneys, and the plaintiffs here clearly consented to Lock talking to and working as a paid expert on behalf of the defense. Ruiz contends the judge properly enforced the terms of the agreed order and the San Romans have offered no evidence to support "the special meaning" they ascribe to the order's terms. He also contends the family demonstrated a lack of fairness and diligence in bringing the motion to bar and compel and had no right to insist that Lock be barred from the defense team. Rather than filing a separate brief, the children's heart center filed a motion to join and adopt its employee's brief as its own, and we granted the motion.
We agree that the San Romans, through their attorney, consented to Lock's association with the defense team, however, the argument misses the point. Ruiz's motion for a protective order and the subsequent agreed order repeatedly refer to Lock as a consultant, and in the Illinois courts, a litigation consultant is an expert who works entirely behind the scenes and never testifies at trial. Ruiz's motion referred to Illinois Supreme Court Rule 201, which addresses the methods and permissible scope of discovery. Subparagraph (b)(3) of that rule provides the following definition:
"Consultant. A consultant is a person who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial. The identity, opinions, and work product of a consultant are discoverable only upon a showing of exceptional circumstances under which it is impractical for the party seeking discovery to obtain facts and opinions on the same subject matter by other means." 166 Ill. 2d R. 201.
The Committee Comments to Rule 201 explain that " 'exceptional
circumstances' " warranting discovery of an adversary's consultant
might occur when that person "is the only source of information about
[an item of physical evidence that is no longer available because of
destructive testing], or in cases in which all the experts in a field
have been retained by other parties and it is not possible for the
party seeking discovery to obtain his or her own expert." 166 Ill. 2d
R. 201, Committee Comments, at lviii. Even outside the legal field,
the term "consultant" is commonly understood to mean "a person who
gives professional or expert advice." Webster's Unabridged Dictionary
437 (2nd ed. 1998). Thus, a physician retained as a "consultant" would
be in an advisory role and would help the attorney understand the
terminology and nuances of the claim,
decipher treatment records, prepare to depose medical
professionals, and otherwise ready the case for trial. The
"consultant" would remain invisible to the opposing attorney, his or
her client, and the judge, except in "exceptional circumstances"
warranting disclosure (166 Ill. 2d R. 201); and the jury would have no
reason to ever know the "consultant" existed.
Furthermore, this jurisdiction has historically distinguished between experts who testify at trial and consulting experts who do not testify at trial. Former Rule 220 preceded the current version of Rule 201 and provided the following "[d]efinition of expert witness":
"An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, a party, or an independent contractor." (Emphasis added.) 134 Ill. 2d R. 220.
In contrast, the rule defined a "Consulting expert" as "a person who possesses the same qualifications as an expert witness and who has been retained or specially employed in anticipation of litigation or preparation for trial but who is not to be called at trial to render opinions within his area of expertise." (Emphasis added.) 134 Ill. 2d R. 220. The Committee Comments to former Rule 220 elaborated:
"[This discovery rule] recognizes the difference between an expert who is to testify at trial and one who is retained to advise the parties without expressing an opinion under oath. The latter is a resource person whose retention is often essential to an appreciation of the technical aspects of a claim. The former is retained to testify, as well as consult ***. Both possess expertise in a specialized area beyond that of an average person." 134 Ill. 2d R. 220, Committee Comments, at 180.
Similarly, Rule 26(b)(4), the Federal counterpart of our former Rule 220, does not use the term "consultant" but does distinguish between "an expert whose opinions may be presented at trial" and "an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial." Fed. R. Civ. Proc. 26(b)(4)(A), (b)(4)(B) (West 2004).
During the discovery phase of this lawsuit, Ruiz's attorney presented a motion for protective order which tracked the language of the discovery rules by introducing Lock as "his retained consultant," stating Lock had been hired "to consult on and review this matter and provide his expert opinion regarding [Luis'] treatment," and arguing that the later-formed doctor-patient relationship between Lock and Luis should not "preclude defendant's previously established consulting relationship with a retained expert." Continuing, the motion sought authorization for defense counsel "to communicate with Dr. James Lock outside the confines of formal discovery procedures with the exception of matters related to his care and treatment of [Luis] which would be conducted only pursuant to [the conventional methods of discovery described in] Supreme Court Rule 201." Thus, the motion spoke of the need for limited communication between defense counsel and Lock, but did not indicate Lock would be part of the trial presentation.
The motion was resolved by an agreed order, also drafted by defense counsel, which authorized counsel to "continue to retain, consult with and communicate with his retained consulting pediatric cardiology expert [about any and all aspects of Luis' care and treatment, medical conditions, injuries, and damages occurring before he came under Lock's care in 2003]." Emphasis added. The order's concluding sentence is an additional indication that the subject at hand was discovery, not trial, stating "2. Nothing in this order authorizes defense counsel or representatives of defendant CARLOS RUIZ, M.D. to obtain medical records or information through means other than formal discovery ***."
It appears that at the time, no one, not even defense counsel, anticipated calling Lock to testify before the judge or jury. Ruiz's choice of words limited Lock's role to an advisory capacity. An agreed order is not a judicial determination of the parties' rights, it is a recitation of an agreement between the parties which is subject to the rules of contract interpretation (Kandalepas v. Economou, 269 Ill. App. 3d 245, 252, 645 N.E.2d 543, 548 (1994)), and we cannot find any indication in this agreed order that Lock would take the stand as a defense expert witness. The parties did not agree that Lock could testify against his own patient. Ruiz protests the San Romans have "offered no evidence to support the special meaning that they ascribe to the Agreed Order," yet it is Ruiz who has expanded the agreement beyond the plain terms that were chosen by his lawyer. The agreed order clearly authorized Lock to communicate with defense counsel and, therefore, precluded a Petrillo objection, but it did not authorize Lock to also take the witness stand in Ruiz's defense. The agreed order did not support the court's denial of the San Romans request to bar Lock from testifying at trial.
Ruiz and the Children's Heart Center complain that the distinction between a consulting expert and a testifying expert is one the San Romans never made in the trial court and that raising the objection for the first time on appeal results in waiver. See Webber v. Wight & Co., 368 Ill. App. 3d 1007, 1019, 858 N.E.2d 579, 591 (2006). We do not find waiver. First, the plaintiffs persistently maintained in their motion to bar (denied January 18, 2006), motion for reconsideration (denied March 21, 2006), and petition for supervisory order (denied June 7, 2006) that it was improper for Lock to testify at trial. Second, the San Romans posttrial motion did draw the distinction between a consulting expert and a testifying expert which Ruiz is contending is an invention of the San Romans' appellate brief writer. In denying the motion for a new trial, the judge summarized this particular argument but did not address it, ruling instead that the San Romans "agreed to allow Dr. Ruiz to continue to utilize Dr. Lock as his retained expert," "knew that Dr. Lock was the defendants' expert and that he would be giving opinions concerning this case when they agreed to the September 19th Order," and "waived their rights under Petrillo by failing to assert their rights in a timely fashion and by specifically agreeing to allow Dr. Lock to remain as Dr. Ruiz's expert while still treating [Luis]." In our opinion, the judge accurately concluded that the San Romans consented to and waived a Petrillo objection, but had no basis for also concluding they consented to and waived objection to their physician's appearance as a defense expert witness. The plaintiffs are entitled to a new trial which does not include Lock as a defense expert witness.
Given this conclusion, we need not reach Luis' additional grounds for
reversal. We reverse the judgment entered for the defense and remand
this cause for further proceedings
consistent with the opinions expressed above.
Judgment reversed and cause remanded for further proceedings. GARCIA P.J. and R. GORDON, J., concur.
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Wolter says that he believes that the Sphinx is older than the rest of Egypt and that the head of the Sphinx has been re-carved from that of a lion. Wolter feels that the Sphinx was carved in 10,000 BCE because it is a lion and therefore symbolizes the constellation of Leo, which "ruled" the year under Babylonian astrological rules in that time period, despite the zodiac not having been invented until 500 BCE, give or take. "That's how you prove your case," Wolter said after failing to demonstrate the existence of the Babylonian zodiac in Egypt in 10,000 BCE.
After this, Wolter goes on to give his usual nut-job conspiracy theory about how the Venus Families, the goddess-worshipping dualists of his fever dreams, performed a coup d'état in order to bring down the Catholic Church by infiltrating them from within via the Cistercians and Templars. Given that the Church controlled only part of a poor and backward peninsula (Western Europe), globally speaking, one does wonder at the point of it all. Shouldn't they have been trying to bring down the Orthodox Church, then much larger and powerful, or Hinduism or Islam, if they were truly a world-bestriding goddess strike force?
After a break Wolter recaps the story of Pirate Treasure of the Knights Templar, and he again falsely claims that the lead ballast discovered during filming is "silver." Wolter blasts UNESCO for doubting his and Clifford's claims, but he then backtracks and admits that he never saw the piece of metal in question. "It looks silver," he said, basing his claims on a photograph, before adding that in "pirate culture" lead and silver were equally valuable, so it doesn't matter. Wolter claims that silver was often used as ballast because it was so worthless, but I can't find a single reference to that anywhere.
This leads to a discussion of the history of the Knights Templar and their suppression in 1307, and Wolter states that this occurred on the thirteenth of October because that is the number of Mary Magdalene and the Goddess. "It was no coincidence that it was the thirteenth." Wolter adds that he gained his knowledge of the Templar suppression from "Masonic lodges," because he believes that "Freemasons are the ideological descendants of the Knights Templar." "Duh," he adds. He says that "academics" don't know "everything" about the Templars, but he fails to explain how he became privy to the truth about the Templars without being able to cite a single document of artifact to support his imaginary history of the Middle Ages. He presents, for example, the allegation that the Templars fled by ship from New Rochelle, but says he knows the story only from notes that a "friend" made on a French-language book he cannot read. He believes that the Templars understood ley lines and Earth magnetism to a scientific level that even modern scientists can't comprehend. "Exactly how they did it, I don't know," Wolter said.
He did a segment on the Kensington Rune Stone and then admits that he is now a Freemason. "When I was doing America Unearthed, I wanted to remain neutral," he said. But his encounters with Freemasons helped convince him that he was ready to follow his father into Masonry. Wolter added that as a Mason he is now privy to secret Masonic knowledge that he is not allowed to share with the public. "There are certain things I took an obligation not to talk about," he said.
Wolter said that the Kensington Rune Stone reflects the rituals of the York Rite of Masonry, but instead of seeing this as a suggestion that the stone is a modern fake, perhaps directly referencing Masonry, he concludes that Masonry dates back at least to the 1300s! Q.E.D. Wolter also says that no one else understands Masonry to the "depth" he does in order to connect it to the Kensington Rune Stone. Anyway, this is the "number" code he talked about before, whereby the numbers used on the Rune Stone are allegedly connected to York Rite rituals.
Wolter discusses his belief that Henry I Sinclair, Earl of Orkney colonized America, though he can't cite a single document or piece of evidence to that effect. Wolter discusses Jesuit conspiracies and his belief that the Vatican has secret documents about colonizing America that will never be known. He says that much of his information about conspiracies comes from "mouth to ear," which is to say, from other conspiracy theorists telling him things that he then believes without documentation.
Nearing the end of the show, Church asks Wolter if the Hooked X® appears in other cultures beyond Europe, and Wolter says no, but that all cultures worship "the same deity" and universally believe in "living in balance." He claims that the Hooked X® can bring the world together under a universalist spirituality that transcends religion. Wolter concluded the show by saying that the History Channel loves him but has not committed to a new show, while another network has expressed interest in a new program to star him. He says that the odds are good that he'll be on TV again with a new series soon. This is only to be expected; once on television, it becomes a virtual certainty that one will get another show thanks to the sunk cost fallacy. The show just moves further up the dial into the digital tier, as smaller channels try to grab part of the audience from the older shows on bigger channels.


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United States District Court, M.D. Pennsylvania
May 21, 2014
SCOTT CIPRIANI Plaintiff,v.LIBERTY LIFE ASSURANCE COMPANY OF BOSTON Defendant.
MATTHEW W. BRANN, District Judge.
Before the Court is Defendant Liberty Life Assurance Company of Boston's Motion for a Protective Order to Prohibit Conducting Depositions Requested by Plaintiff and a Brief in Support of that Motion (ECF Nos. 21, 22).[1] The Motion seeks to prohibit Plaintiff Scott Cipriani from conducting two depositions the Defendant asserts are beyond the scope of appropriate discovery for this action. The Plaintiff filed a Brief in Opposition to the Motion (ECF No. 24) and the Defendant filed a Reply Brief (ECF No. 25).
For the following reasons, the Motion is granted in part and denied in part.
This action concerns a claim asserted by Plaintiff Scott Cirpriani seeking long term disability benefits filed pursuant to the Employee Retirement Income Security Act (ERISA), §502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). Liberty Life Assurance Company of Boston ("Defendant" or "Liberty Life") is the insurer for benefits under the long term disability plan provided by Plaintiff's employer, The Turner Corporation ("Turner"). Liberty Life provides long term disability insurance to Turner employees under a group disability income policy ("Turner LTD Policy"). Cipriani was covered under the Turner LTD Policy as a result of his employment as a Project Superintendent for Turner.
Cipriani commenced disability leave from his position at Turner on February 23, 2009, following a motor vehicle accident in which he was injured. Cirpriani received benefits under a Turner Short Term Disability plan until the maximum 90-day period expired. On May 25, 2009, Cipriani began to receive long term disability benefits under the Tuner LTD Plan.
Under the policy, persons in Cipriani's employment class were eligible to receive benefits for a 24-month period if their medical conditions prevented them from performing the material duties of their occupations. After benefits were paid for the 24-month period, a person was eligible to continue receiving benefits if his medical condition prevents him from performing the material duties of any occupation.
Cipriani received benefits under the Turner LTD Policy from May 25, 2009 through November 17, 2011 when benefits were discontinued due to Liberty Life changing Cipriani's disability status to an "any occupation" definition. Liberty Life asserted that the discontinuance of benefits was based upon its determination that Cipriani's physical conditions did not prevent him from returning to any alternative occupations identified during the administrative review process. Cipriani pursued an administrative appeal that was denied on June 11, 2012. Cipriani then filed the instant action.
In support of his claims, Cipriani seeks to take two depositions subject to the instant motion that Liberty Life desires to prevent: depositions of Stephanie Berry ("Berry") and Dr. Ronald Disimone (Dr. Disimone). Berry is the Liberty Life claim representative principally responsible for Liberty Life's final administrative decisions. Dr. Disimone was one of Plaintiff's treating physicians consulted in the review process. Liberty Life objects because it asserts these depositions are directed solely to the merits of Liberty Life's administrative decision, which is not appropriate discovery in an ERISA action in this posture.
A. ERISA Discovery
ERISA empowers a person denied benefits under an employee benefit plan to challenge that denial in federal court. 29 U.S.C. § 1132(a)(1)(B). The conflicting values at issue in the Motion sub judice are the general limitation on discovery in ERISA actions and the strain of cases recognizing that limited discovery is appropriate in a narrow set of circumstances. A fundamental goal of ERISA is to provide "a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously." Accord Semien v. Life Ins. Co. of N. Am. , 436 F.3d 805, 815 (7th Cir. 2006) (quoting Perry v. Simplicity Eng'g , 900 F.2d 963, 967 (6th Cir. 1990)) (internal quotations omitted). Consequently, discovery is often limited in ERISA actions; in some cases, depending on the court's applicable standard of review, discovery beyond the administrative record is inappropriate.
The United States Supreme Court articulated the appropriate standard of review for this species of ERISA action, stating that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 115 (1989). When the challenged plan grants the administrator discretionary authority by its terms, the applicable standard of review is "arbitrary and capricious." Estate of Kevin Schwing v. Lilly Health Plan , 562 F.3d 522, 525 (3d Cir. 2009). Under this standard, an administrator's interpretation of the plan "will not be disturbed if reasonable." Id. at 114; see also Mitchell v. Eastman Kodak Co. , 113 F.3d 433, 437 (3d Cir. 1997). "To be insulated from de novo review, a plan must communicate the idea that the administrator not only has broad-ranging authority to assess compliance with pre-existing criteria, but also has the power to interpret the rules, to implement the rules, and even to change them entirely." Viera v. Life Ins. Co. of N. Am. , 642 F.3d 407, 417 (3d Cir. 2011) (internal quotations and citations omitted).
The policy in this case vests Liberty Life with the authority and discretion to construe the terms of the policy and to determine benefit eligibility. Both the construction and determinations have conclusive and binding effect. Specifically, the policy states:
Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit eligibility hereunder. Liberty's decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding.
Def.'s Br. at 5. According to this language and the controlling law, the deferential "arbitrary and capricious" standard of review is applicable in this case. Viera , 642 F.3d at 417.
When this deferential standard of review is applicable, the general rule is that a court's review is limited to the administrative record, and discovery is correspondingly limited. See, e.g., Kosiba v. Merk & Co. , 384 F.3d 58, 67 n.5 (3d Cir. 2004). An exception to that general rule is that a court "may consider evidence of potential biases and conflict of interest that is not found in the administrative record." Id . Circumstances involving structural[2] or procedural conflict[3] provide fruitful ground for potential bias.
1. Structural Conflict
In Metropolitan Life Insurance Co. v. Glenn , 554 U.S. 105, 123-24 (2008), the Supreme Court ruled that when an insurance company has the dual role of deciding a claim for benefits as well as paying benefits under the plan, a court reviewing the insurance company's claim determination should consider the potential conflict of interest posed by the insurance company's dual status-termed a structural conflict. The Court further elucidated that a reviewing court should apply a totality of circumstances inquiry by examining whether any evidence exists that the potential conflict created by an insurer's dual role as payer and decision-maker influenced the benefit determination. Glenn , 554 U.S. at 116-17.
The existence of a structural conflict is "but one factor among many that a reviewing judge must take into account." Id. at 116. Furthermore:
In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor's inherent or case-specific importance. The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.
Id. at 117.
In the wake of this seminal decision, courts have considered the impact of Glenn's pronouncements on the permissible scope of discovery in ERISA benefits actions. Many courts have ruled that plaintiffs in ERISA benefit cases are entitled to pursue limited discovery concerning the potential conflict of interest posed by an insurer's dual role as decision-maker and payer of benefits. See, e.g., Rhodes v. Principal Fin. Grp., Inc., 4:10-cv-290, 2010 WL 4867618, *1-2 (M.D. Pa. Nov. 23, 2010) (Munley, J.). Consistent with the general limitations on discovery in ERISA review cases of this posture, however, courts have often placed narrow restrictions on the scope of such allowed discovery. See, e.g., id.; Dandridge v. Raytheon Co. , 08-cv-4793, 2010 WL 376598, *5 (D.N.J. Jan. 26, 2010) (allowing discovery on structural conflicts but denying discovery on merits of administrative decision); Mainieri v. Board of Trustees of Operating Engineer's Local 825 Pension Fund , 07-cv-1133, 2008 WL 4224924, *3 (D.N.J. Sept. 10, 2008) ("[D]iscovery can be taken with regard to issues that raise a good-faith allegation of procedural or structural conflict of interest[, ] but not for matters that merely speak to the merits of the administrator's decision.").
As one judge observed, "the majority opinion in Glenn fairly can be read as contemplating some discovery on the issue of whether a structural conflict has morphed into an actual conflict.... But any such discovery must be allowed sparingly and, if allowed at all, must be narrowly tailored so as to leave the substantive record essentially undisturbed." Denmark v. Liberty Life Assur. Co. of Boston , 566 F.3d 1, 10 (1st Cir. 2009) (Selya, J.); see also Dandridge, at *5.
2. Procedural Conflict
Courts may also allow limited discovery when procedural conflicts are present. The United States Court of Appeals for the Third Circuit has stated that allegations of fraud or mistake are subject to investigation, but did not articulate the specific parameters of that discovery. See Gardner v. Unum Life Ins. Co., 354 Fed.App'x 642, 648 n.4 (3d Cir. 2009). To permit such discovery, district courts within the Third Circuit have required plaintiffs to make "a good-faith allegation of a procedural irregularity or bias in the review process that is sufficient to warrant additional discovery." Mainieri v. Board of Trs. of Operating Eng'r's Local 825 Pension Fund , 07-cv-1133, 2008 WL 4224924, *3 (D.N.J. Sept. 10, 2008); see also Rhodes, at *2; Dandridge, at *5. Nevertheless, when a plaintiff's allegation of bias or irregularity amounts to a dispute over the reasonableness of a defendant's benefits decision and plaintiff seeks to reexamine the merits of that determination, courts generally do not allow further discovery beyond the administrative record. Rhodes, at *3.
B. The Depositions Sought Are Allowed but Narrowly Tailored
Plaintiff seeks to depose Stephanie Berry, the Liberty Life claim representative who denied his claim, and Dr. DeSimone, Cipriani's treating physician, alleging both structural and procedural conflicts meriting deposition testimony. According to Plaintiff, the primary event he wants to investigate and substantiate is an alleged phone conversation between Dr. Phillip Marion (the medical expert employed by Liberty Life) and Dr. Disimone in late May of 2012. Plaintiff alleges that during this phone call, Dr. Marion verbally outlined to Dr. Disimone the findings of the Functional Capacity Evaluation (FCE) performed on Plaintiff, but did not provide Dr. Disimone a physical copy of the FCE to review.[4] Plaintiff further alleges that although the actual FCE was wrought with error and unreliable, based on this conversation in which Dr. Marion allegedly misrepresented the contents of the FCE, Dr. Disimone signed a faxed document authored by Dr. Marion reflecting their conversation but not the actual FCE contents not reviewed by Dr. Disimone.
Dr. Disimone had previously opined that Cipriani was totally disabled. The Plaintiff asserts, therefore, that these subsequent communications were Liberty's attempt to manipulate the administrative record and circumvent Dr. Disimone's prior assessment. Plaintiff alleges this was both a structural conflict that morphed into an actual conflict based on selection of Dr. Marion and the surrounding circumstances, and a procedural conflict exhibiting irregularity or bias sufficient to warrant additional discovery.
To support his "good-faith allegation" of irregularity or bias, Plaintiff supplies a letter authored by Dr. Disimone to Plaintiff's attorney, dated July 13, 2013. Dr. Disimone wrote the letter in regard to written statement he prepared on June 4, 2012 in response to the conversation with Dr. Marion in which he agreed with Dr. Marion's assessment of the FCE. Dr. Disimone wrote that:
I was never given an opportunity to review that [FCE] which, since speaking to you recently, I have had a chance to study. I, therefore, believe that there is a procedural conflict within the record. I was not aware of certain flaws in the FCE that were highly relevant to the question of disability. Dr. Marion certainly should have been aware of these flaws, but did not bring them to my attention. I believe this was due to his biases in the case in that he was clearly trying to find Mr. Cipriani was not disabled, despite rather extensive and severe injuries.
It is clear to me that what Dr. Marion, acting on behalf of Liberty Life, was attempting to do was get around or circumvent my opinion letter that stated Mr. Cipriani was totally disabled. And, I believe that is why his conversation with me was not a full disclosure of the FCE.... I believe that Dr. Marion had a conflict of interest, in that an injustice will occur if the Court does not allow additional discovery in this matter as my medical opinions of disability were skewed and averted
Pl.'s Br. Opp'n, Ex. A, Dr. Disimone Letter, Nov. 22, 2013, ECF No. 24-1 [hereinafter Pl.'s Br. Opp'n].
Dr. Disimone's letter, along with Plaintiff's other good-faith allegations, rise to the level such that potential procedural irregularities or biases merit further discovery. See, e.g., Mainieri, at *3. Furthermore, some discovery is warranted to investigate, not whether Liberty Life's decision was reasonable based on the merits of the administrative record, but whether its position as the entity both determining the merits of a claim and paying benefits presented a structural conflict that did indeed morph into an actual conflict in this instance. See, e.g., Rhodes, at *1-2. That discovery, however, should be narrowly tailored to investigating only these issues and not reexamine the merits of Liberty Life's decision or supplement the administrative record with merit-oriented factual information. See, e.g., Denmark , 566 F.3d at 10.
1. Deposition of Stephanie Berry
Plaintiff seeks to depose Stephanie Berry, the Liberty Life claim representative who denied his claim to investigate the potential structural and procedural conflicts at issue. Plaintiff initially proposed sixteen (16) questions or areas of questioning, but subsequently admitted questions 9 through 12 are satisfied by the administrative record and question 7 was answered by Defendant. Consequently, eleven (11) questions remain in dispute.
Plaintiff is permitted to ask only the questions hereinafter delineated at Berry's deposition.[5]
Proposed questions 1 and 2 suggest to have Berry verify the record she had in her possession at the time of her administrative decision, and ask her to identify those records or opinions which she relied on in support of her determination. Pl.'s Br. Opp'n, at 8. Liberty Life has produced the entire claim file concerning Cipriani's administrative claim for benefits, and has confirmed in discovery responses that there are no additional documents relating to Cipriani's claim other than those contained in the administrative record. Def.'s Br. Reply, at 2. Accordingly, Plaintiff's proposed questions 1 and 2 are satisfied by the administrative record, do not investigate areas of structural or procedural conflict with the necessary specificity, and are therefore inappropriate for this action. See, e.g., Denmark , 566 F.3d at 10.
Questions 3 through 5 seek to discern how medical experts were selected to review and provide the opinion as to Cipriani's benefits, how frequently the medical expert/experts named in Liberty Mutual claims file are used by Liberty Mutual to review Long Term Benefits, and how frequently Liberty Mutual uses the individual or facility that performed Cipriani's FCE together with whether Liberty uses other individuals or facilities. Pl.'s Br. Opp'n, at 9. These questions do not seek to reexamine the reasonableness of the merits, but to explore a potential procedural bias or the possibility of structural conflict potentiating as actual conflict, are not adequately addressed by the administrative record, and are therefore appropriate discovery in this instance.
Question 6 asks whether Berry sought out or requested Dr. Disimone be contacted personally regarding his opinion of Cipriani's disability or whether someone else at Liberty Mutual made the request. Pl.'s Br. Opp'n, at 10. This question addresses potential actions which may indicate an attempt to manipulate the administrative record and the Plaintiff may appropriately explore it.
Question 8 concerns whether Berry or anyone at Liberty Mutual requested a medical opinion or record review from any medical doctor or specialist that indicated Plaintiff was totally and/or permanently disabled. Pl.'s Br. Opp'n, at11. Any such request and examination would be reflected by the administrative record in the case, and is therefore inappropriate for this deposition.
Question 13 presents a line of inquiry that seeks to ask about issues specifically related to the claim filed, for example, issues surrounding the notes of Jennifer Sullivan, a nurse employed by the Defendant. Pl.'s Sullivan's comments, and other areas involved in this line of questioning, are contained within the administrative record. Furthermore, questioning Berry about the details of reviewing the files in the administrative record and her interpretation of those documents are blatant questions about the substantive aspects of the decision-making process that are not narrowly tailored to investigate structural or procedural bias. Consequently, this line of questioning is not permissible at Berry's deposition. See, e.g., Denmark , 566 F.3d at 10.
Question 14 seeks to verify that Plaintiff's counsel was not provided the written documents signed by Dr. Disimone verifying the verbal conversation between Dr. Disimone and Dr. Marion in June of 2012. Pl.'s Br. Opp'n, at 13. The administrative record reflects, however, that neither Dr. Marion's peer review report nor Dr. Disimone's signed statement provided to Dr. Marion as part of that peer review were sent to Plaintiff's counsel prior to Liberty Life's issuance of its appeal determination. Furthermore, Liberty Life does not dispute this fact. Def.'s Br. Reply 5, Aug. 8, 2013, ECF No. 25 [hereinafter Def.'s Br. Reply]. Consequently, this questioning is inappropriate for Berry's deposition.
Question 15 asks whether Berry has any knowledge of whether Dr. Disimone was ever shown the FCE performed by Defendant to determine its validity. Pl.'s Br. Opp'n, at 13. This question investigates potential procedural conflict and actual conflict resulting from structural conflict, and is not necessarily satisfied by the existing administrative record. The Plaintiff may ask Berry this question at a deposition.
The final proposed are of inquiry, Question 16, seeks to ask "[a]ny other questions from the Liberty Mutual claim file' that may be relevant to the issues in dispute." Pl.'s Br. Opp'n, at 14. Although this "catch-all" line of questioning may ensnare a fact or two demonstrating bias among the many responses produced from casting a wide net on the waters, Plaintiff's fishing expedition outlined in this question is not the "narrowly tailored" discovery sanctioned by the law. Denmark , 566 F.3d at 10. Without more articulated specificity, Plaintiff's proposed broad area of inquiry is inappropriate for Berry's deposition.
2. Deposition of Dr. Disimone
The entire scope of Plaintiff's specific purposes for seeking to depose Dr. Disimone are not entirely clear from his briefs. Plaintiff's asserted support for deposing Dr. Disimone are broad allegations that Plaintiff seeks to show generally that "a mistake and or fraud occurred within the administrative record" and to correct alleged errors perpetrated by Dr. Marion (intentionally or not). Pl.'s Br. Opp'n, at 15-16. To the extent that Plaintiff is attempting to supplement the administrative record with Dr. Disimone's testimony concerning his medical evaluations both contained within the administrative record and those evaluations performed after the close of the administrative record, these areas of questioning are well beyond the scope of that allowed in ERISA actions and shall not be discussed. See, e.g., Rhodes, at *3.
Plaintiff, however, through Dr. Disimone's assertions advanced in his letter of November 22, 2013 (quoted supra ), has alleged a good-faith basis for investigating procedural conflict. Dr. Disimone's knowledge of facts relating to the procedural conflict is confined specifically to the following narrowly tailored areas of questioning that the Plaintiff is allowed to pursue: I) Dr. Disimone's observation of flaws in the FCE and the concerns they elicit;[6] and, ii) Dr. Disimone's discussions with Dr. Marion and other Liberty Life representatives, where the substance of those conversations is not fully reflected in the administrative record.
These areas of questioning are the extent to which Dr. Disimone should have information relevant to investigating possible procedural conflict and actual bias in the review process. Any questioning outside these narrowly tailored topics, especially including questions related to Dr. Disimone's medical evaluations after the close of the administrative record, go to the merits and reasonableness of the administrative decision and are therefore inappropriate in light of the law. See, e.g. Denmark , 566 F.3d at 10. Liberty Life, of course, retains the right to make standing objections on the record, and admissibility determinations of evidence in conflict may take place when appropriate in the future.
In light of the foregoing, Liberty Life's Motion for a Protective Order is denied in part and granted in part. Plaintiff may depose the two witnesses only in the narrowly tailored areas articulated in order to investigate potential procedural and structural conflict issues.
An appropriate Order follows.
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text: Who are you? Are you among the Doctor Kings or Medgar Evers Of the world Do you daydream inventions, or Invent fantasies of better things As morning's breeze Sway you "to" and "fro" Do you know (who you are) Do you know the RICHness Of your family (heritage) tree Deeply rooted in this American history Do you feel the pride Of your fore-parent's ride Along success lane Where hard work and determination Ordained them successful citizens Of these here United States (of liberty) Do you know who you are Are you a problem child, or (Problem solver) Do you harbor Deep-seated fantasies of Logarithmic functions Where the conjunction "AND" Means the multiplication of Algebraic equations With derivations That leads to the summation Of you (IS THAT TRUE) Do you know who you are? Are you a (wordsmith) Who air-brush ageless pages With flaring penmanship That lifts the spirits of those who wish An horizon's kiss …A sunset so beautiful it touches the soul ~ Of even the most casual observer ~ Do you know (who you are)? Do you see in me A future no one else can see Would you be there for me When the chips are down And the sound of death Knocks on my door Can we stand as one Against the raging storm As well as…the calming sea Do you know who you are? Do you?


text:
20 CFR 404.270 - Cost-of-living increases.
Beta! The text on the eCFR tab represents the unofficial eCFR text at ecfr.gov.
§ 404.270 Cost-of-living increases.
Your primary insurance amount may be automatically increased each December so it keeps up with rises in the cost of living. These automatic increases also apply to other benefit amounts, as described in § 404.271.
[47 FR 30734, July 15, 1982, as amended at 51 FR 12603, Apr. 14, 1986]
Title 20 published on 2015-04-01
The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 20 CFR Part 404 after this date.


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Sierra Designs - Backcountry Bed 2.5 Seasons (Fall 2015)
The Backcountry Bed 2.5 Seasons from Sierra Designs is a 33° F synthetic bag that makes you feel like you're in bed at home, with an integrated quilt on the top half that allows for different sleeping positions and provides excellent temperature regulation. With this oversized, integrated comforter sealing the opening, you can sleep comfortably and naturally on your back, side, or stomach. On warm nights, simply flip the quilt outside of the bag's opening for a cool and breezy night's rest.
Technical specifications & features
|Men's Regular: 3 lbs 15 oz. (1.79 kg)
Men's Long: 4 lbs 6 oz. (1.98 kg)
|Men's & Unisex
|Temp Rating º F
|Temp Rating º C
|EN Lower Limit (Men's Rating)
|Bag Style
|Spoon Shape
|Seasonal Usage
|2.5 Seasons
|Poly-Fiber Synthetic
|Fill Weight
|Men's Regular: 46.3 oz. (1.31 kg)
Men's Long: 51.8 oz. (1.47 kg)
|Bag Shell Material
|50D Polyester Ripstop
|Bag Lining Material
|30D Polyester Taffetta
|Bag Length
|Men's Regular: 6 ft. in. (182 cm)
Men's Long: 6 ft 6 in. (198 cm)
|Bag Stuff Size
|Men's Regular: 10 in. x 17 in. (25.4 x 43.1 cm)
Men's Long: 10.5 in. x 19 in. (26.7 x 48.3 cm)
|Other Features
|Sleeping Pad Sleeve Width:
Men's Regular: 20 in. (51 cm)
Men's Long: 25 in. (63.5 cm)
Zipperless Design
No additional hardware, cords or Velcro to get in the way of a comfortable night's sleep
Catenary Shaped Opening
Opening is smaller than bag width so when you push out, the walls push in to seal out drafts
Versatile Integrated Comforter
Wraps naturally to your preferred sleeping position and allows you to easily adjust to varying temperatures
Self-Sealing Foot Vent
Stays draft-free when not being used and allows for intuitive, hands-free exterior access without the need for toggles or zippers
Insulated Hand/Arm Pockets
Provides insulation under your arms when comforter is used outside of the bag
Sleeping Pad Sleeve
Secures your sleeping pad to create the experience of a fully integrated bed
Questions & Answers
No questions yet. Be the first to ask the question!
Related Blog Posts
- Features
- Product Reviews
- Questions & Answers
- Similar Products


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Note: Sample below may appear distorted but all corresponding word document files contain proper formattingExcerpt from essay:
Description of Industry
Gap, Inc. is one of the most leading American forte apparel retailers who foundation is centered in San Francisco, California. It trades things like the casual apparels, decorations, and other products that are personal for men, women and children. The merchandises of Gap, Inc. comprise of khakis, T-shirts, boxers, denim, casual wear, and others. The trade is done in the New York Stock Exchange which goes up under the symbol GPS. The brands that signified reasonable stylishness and just about everyone-from well-known celebrities to usual American families had a pair of Gap clothing somewhere in their closet. Many people had to have the latest pair of khakis or a cardigan from Gap. Gap, Inc. maintains an unusually large number of various brands, specifically Gap, Forth & Towne, Piperlime, Old Navy, banana republic, and others. All of these various businesses are purchased by a business in different times. Making its starting point as a general jeans retiling store, Gap, Inc. currently is bringing in with a market value of $14.32 billion. During the course of its history, Gap, Inc. has proven itself as a leader in the industry.
Dominant Economic Characteristics
Fashion retail with the Gap is where they are hugely dominant. In the fashion, they are essentially a customer goods market. It is considered by an extremely short product life, fickle customer partialities, many competitors, comparatively easy admission and departure, and a countless of industrial, marketing and retail replacements (Richardson, 1996). Over in their company, they mostly make mentions to Europe and United States where the capitals of fashion which are New York, Milan, London and Paris - exist in. One of the explanations for Gaps being the leading sector is that they are remarkably much able to get a lot of data on future drifts in color, them in advance, preparing their own assortments by uniting and understanding such information that is with the market data (Aktuglu, 2001).
Major Driving Force of Gap Inc.
Old Navy became the driving force of Gap. With the immense money resources of The Gap backing up its development, Old Navy decided to make the expansion into at an intense pace. When it came to the very end in business, the chain had 61 stores opened, bringing in some $120 million that was all in sales. By 1995, when the organization opened its flagship store in New York, it brought in double the sales, which ended the year with 135 stores and $450 million in transactions. The achievement of the chain had actually surprised even its most hopeful groups, enticing a broader, more chic clientele than its makers had decided to target. A study had been done by NPD Group that was at the end of the period which had discovered that more than 75% of Old Navy's trades were to households that earn somewhere around $60,000 a year. "I really do not believe any of us in the business ever believed that Old Navy would turn into was it has become today," Drexler mentioned in his February 29, 2005 conference with the San Francisco Chronicle. "That's the reality," he added.
Strength of the Industry
One of the strengths is that Gap's information technology systems are always critical to upholding appropriate inventory and supporting its Internet retailing efforts. The company's website was attractive and easy to navigate for customers wanting to view new styles or purchase all of the products online. Gap strength is that it has contracted with IBM to be able function features of its evidence technology substructure, counting provision for its processor computer, servers, network and store operations systems, help desk, data center, customer service support, and some disaster recovery. Another part of this strength is that in January 2009, the corporation applied a refined software package for handling the real estate during the course of its processes. The software permitted the syndicate to screen its real estate workflow and prediction the financial influence of real estate decisions, counting those of combining or increasing or altering store locations. In the fall of 2009, in time for the holiday season, the business also positively transitioned its order meting out to a new system learned from Kiva Organizations.
Key Success Factors
All through the years, Gap has been able to earn the status of a product that has a variety of products that are high-quality. At the present, Gap is recognized all over the world with more than 2000 Gap stores which are located in about eighteen countries, and they include the mainstream of the stores which are owned by Gap, Inc. So, Gap has utilized a vertical incorporation because virtually every one of the aspects of brand growth that comes from product design and distribution, to marketing, selling and shopping environments is organized by Gap.
One advantage of getting a vertical addition is that the business does not have to pay the entire sale and sellers so that they can sell their products. Furthermore, by having a direct client communication, the business can obtain valuable understandings into their partialities. On the other hand, it has also made franchise arrangements in nations for instance Philippines, Saudi Arabia, Bahrain, Indonesia, Kuwait, Malaysia, Singapore, etc. Despite the fact Gap stores can be originating in eighteen nations, Gap functions stores only in six nations, counting the United States, France, Ireland, Canada, the United Kingdom, and Japan. The continuing twelve nations include the franchise arrangements.
Strategic Group Mapping
Strategic mapping is an analytical tool that is used for showing the different market or competitive positions that rival the firm occupy in the industry.
The Major Players
When it comes to the major players, it needs to be understood that the top four U.S. family attire stores industry players were (1) the TJX Companies Inc., with a 13.4% market share (up from 11.5% in 2006); (2) Gap Inc., with a 15% market share (down from 18.6% in 2006); (3) Ross Stores Inc., with a 6.9% market share (up from 4.0% in 2006); and (4) Abercrombie & Fitch, with a 4.1% market share (steady since 2006 but up from 3.8% in 2005) (Loham). American Eagle Outfitters was also a notable rival in the industry, with an estimated market share in 2009 of about 1%.
In addition, consumers who did not need to try on an article of clothing frequently turned to the Internet to find closeouts or other discounts that might not be available locally. Internet retailing is one strategy that all four of the companies are using as a strategy. Consumers with these companies who did not need to try on an article of clothing in their stores would just frequently turn to the Internet sites to discover closeouts or other discounts that might not be available locally. Their strategies do not differ much from the gap beside the fact that might sell more loyal brands than the others.
Is the Industry Attractive?
The industry is particularly attractive at the moment because the Gap has control over all features of brand development from design to delivery in-house. It is an attractive industry because most of its products that were being manufactured by roughly 79 independent merchants are positioned in 60 nations. Nearly 3% of the company's products were produced nationally, with the remainder that is produced outside the United States.
Financial and Economic Analysis
The combined financial statement contrast displays that Gap, Inc. is financially and frugally sound. While the establishment faced a decrement in net income among the years of 2006 and 2007, the last two years have displayed that Gap, Inc. is continuing. At this time, Gap is worth $15.75 billion where the business regular is merely $489.12 million. It has income of $16.76 billion (2008) where as the manufacturing income is simply $2.41 billion. Another significant pointer, Pays per Share is $1.05 of Gap associated to $0.95 of the manufacturing normal.
Ratio Analysis
The information that is utilized here which are from 2008 Annual Report.
Liquidity Ratio
The data analysis of solvency ratios displays that the company has a quick ratio that is of 1.42 and a current ratio of that includes about 2.21. The current ratio displays that the business can still capitalize some of its money.
Leverage Ratio
Gap Inc. The ratio among obligation and net worth was 0.44, and that among debt and records was 0.49. This displays that the business is in a good share concerning the volume recompense of debts.
Profitability Ratio
Return on sales was 0.07, and that of assets was 0.08. This displays that the corporation still has a plenty of space to grow. This profitability ratio is not showing a strong point.
SWOT Analysis
Gap over the years has managed to be able to encounter the investors' anticipation most of times because its business. It has been disbursing out normal bonuses, and the stock trend are starting to display that the business's value has been unstable. For the duration of the .com boom which happened around 1998 and 1999, the…[continue]
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Gap Pesti and SWOT Analysis SCOPE In this section, I am doing a PESTI and SWOT analysis of GAP Inc. The goal of a PESTI and SWOT analysis is to evaluate the performance of a firm by using their financial statements[footnoteRef:1]. In a PESTI and SWOT analysis you can determine the value of a firm by looking at its profitability and its growth. I will be using SWOT analysis and cash flow
Gap is a major American retailer of casual apparel. This industry is mature, and highly fragmented. As such, the Gap and its competitors each have a relatively small market share. There are over 400 significant industry players (Global Industry Analysts, 2010). There are some generalizations, however, that can be made with respect to this market and Gap's position within the casual apparel market. Overall, the casual apparel market in the United
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