Allen v. First UNUM Life Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MARCUS ALLEN, M.D.,

Plaintiff,

v. Case No.: 2:18-cv-00069-JES-MRM

FIRST UNUM LIFE INSURANCE

COMPANY, PROVIDENT LIFE AND

CASUALTY INSURANCE COMPANY

and THE UNUM GROUP,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of plaintiff

Marcus Allen, M.D.’s Motions in Limine (Docs. ##164, 165, 166,

167, 168, 169), filed on June 28, 2021. Defendants First Unum

Life Insurance Company, Provident Life and Casualty Insurance

Company and The Unum Group filed Responses in Opposition (Docs.

##188, 190, 191, 192, 194, 196) on July 22, 2021. Also before the

Court are Defendants’ Motions in Limine (Docs. ##172, 173, 174,

175) filed on June 28, 2021, to which Plaintiff Responded in

Opposition (Docs. ##184, 185, 186, 187) on July 21, 2021.

The parties are well-acquainted with the facts of this case,

as set forth in the Joint Final Pretrial Statement (Doc. #179) and

the Court’s recent Opinion and Order resolving cross-motions for

summary judgment (Doc. #205.) For present purposes, the only claim

before the Court is Count 1 of the Second Amended Complaint (Doc.

#87.) Dr. Marcus Allen (plaintiff or Dr. Allen) asserts that

defendants Provident Life and Casualty Insurance Company and The

Unum Group (collectively Defendants) breached four individual

disability insurance policies (the Individual Policies) when they

terminated his disability benefits in August 2015. As discussed

in the February 17, 2022 Opinion and Order (Doc. #205, pp. 38-43)

New York law governs substantive contract issues, supplemented by

the Florida rule that requires the insurers to bear the burden of

establishing that an insured was no longer disabled within the

meaning of the Individual Policies.

I.

A motion in limine is a "motion, whether made before or during

trial, to exclude anticipated prejudicial evidence before the

evidence is actually offered." Luce v. United States, 469 U.S.

38, 40 n.2 (1984). These motions "are generally disfavored."

Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.

2017). "Evidence is excluded upon a motion in limine only if the

evidence is clearly inadmissible for any purpose." Id. “A motion

in limine is not the proper vehicle to resolve substantive issues,

to test issues of law, or to address or narrow the issues to be

tried.” McHale v. Crown Equip. Corp., No. 8:19-cv-707-VMC-SPF,

2021 WL 4527509, at *1, at *3 (M.D. Fla. Oct. 1, 2021) (citing LSQ

Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D.

Fla. 2012)). “Nor may a party use a motion in limine to sterilize

the other party’s presentation of the case.” Harris v. Wingo, No.

2:18-CV-17-FTM-29MRM, 2021 WL 5028201, at *1 (M.D. Fla. Oct. 29,

2021) (cleaned up). Additionally, as the Supreme Court has

cautioned:

The ruling is subject to change when the case

unfolds, particularly if the actual testimony

differs from what was contained in the

defendant's proffer. Indeed even if nothing

unexpected happens at trial, the district

judge is free, in the exercise of sound

judicial discretion, to alter a previous in

limine ruling.

Luce, 469 U.S. at 41-42. “A denial of a motion in limine is not a

ruling which affirmatively admits any particular evidence,”

Harris, 2021 WL 5028201, at *1, and does not preserve an issue for

appellate review. United States v. Gari, 572 F.3d 1352, 1356 n.2

(11th Cir. 2009).

II.

Count 1 of the Second Amended Complaint (Doc. #87, ¶¶ 198-

218) sets forth a claim for breach of contract. Dr. Allen alleges

that defendants breached the four Individual Policies by (1)

terminating the payment of benefits despite his continuing

qualifying total disability, and (2) not acting in good faith and

fair dealing in the performance of their obligations under the

Individual Policies.

(1) Attorney Fees as Consequential Damages

The Second Amended Complaint alleges that Dr. Allen is

entitled not only to “contract damages,” but also consequential

damages including, but not limited to, economic damages separate

and distinct from actual contract damages. (Doc. #87, ¶¶ 214-

218.) Both sides have filed motions in limine addressing whether

evidence of attorney fees should be admissible as a component of

the consequential damages sought by Dr. Allen.

Dr. Allen’s motion in limine (Doc. #164) argues that attorney

fees are a component of consequential damages which may be

recovered under New York law in this type of breach of contract

case. Dr. Allen primarily relies upon Bi-Economy Mkt., Inc. v

Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187 (2008) and Panasia

Estates, Inc. v Hudson Ins. Co., 10 N.Y.3d 200 (2008). (Doc. #164,

pp. 2-4.) Dr. Allen envisions that his attorney fees evidence

will be presented to the jury in his case-in-chief to determine

entitlement to attorney fees, and then the amount of the attorney

fees would be determined by the Court in a separate proceeding.

(Doc. #164, pp. 4-5.) Defendants’ competing motion in limine (Doc.

#172) urges the Court to prohibit Plaintiff from introducing any

evidence of entitlement to attorney’s fees as a component of

consequential damages.1

It appears undisputed that if Dr. Allen prevails on his breach

of contract claim, New York law allows recovery of “general

damages,” i.e., damages which “are the natural and probable

consequence of the breach” of a contract, which include “money

that the breaching party agreed to pay under the contract.”

Biotronik A.G. v. Conor Medsystems Ireland, Ltd., 22 N.Y.3d 799,

805, 11 N.E.3d 676, 680 (2014)(citations omitted.) Additionally,

“[i]mplicit in all contracts is a covenant of good faith and fair

dealing in the course of contract performance.” Dalton v. Educ.

Testing Serv., 87 N.Y.2d 384, 389, 663 N.E.2d 289, 291 (1995).

This includes contracts of insurance. “As in all contracts,

implicit in contracts of insurance is a covenant of good faith and

fair dealing, such that “a reasonable insured would understand

that the insurer promises to investigate in good faith and pay

covered claims.” Bi-Econ. Mkt., Inc. v. Harleysville Ins. Co. of

New York, 10 N.Y.3d 187, 194, 886 N.E.2d 127 (2008).

“[C]onsequential damages resulting from a breach of the covenant

of good faith and fair dealing may be asserted in an insurance

contract context,” as long as the damages were "within the

1 The Court rejects Dr. Allen’s argument that Defendants’

motion is effectively an untimely Rule 12(c) motion in disguise.

(Doc. #185, pp. 2-3.)

contemplation of the parties as the probable result of a breach at

the time of or prior to contracting.” YMCA of Plattsburgh v.

Phila. Indem. Ins. Co., No. 8:18-CV-0565 (LEK/DJS), 2018 U.S. Dist.

LEXIS 202818, at *15 (N.D.N.Y. Nov. 30, 2018) (quoting Panasia

Estates, Inc. v. Hudson Ins. Co., 10 N.Y.3d 200, 203, 886 N.E.2d

135 (2008)).2

The specific issue before the Court is whether such

consequential damages may include attorney fees. Generally, New

York law provides that a prevailing party in a breach of contract

case may not collect attorneys' fees from the nonprevailing party

unless such award is authorized by an agreement between the

parties, statute, or court rule. Ambac Assurance Corp. v.

Countrywide Home Loans, Inc., 31 N.Y.3d 569, 584, 106 N.E.3d 1176,

1185–86 (2018); TAG 380, LLC v. ComMet 380, Inc., 10 N.Y.3d 507,

515, 890 N.E.2d 195, 201 (2008). The Court is persuaded by the

authority holding that attorney fees are not a part of

consequential damages. “However, nothing in Bi-Economy or Panasia

alters the common-law rule that, absent a contractual or policy

provision permitting the recovery of an attorney's fee, an insured

may not recover the expenses incurred in bringing an affirmative

2 Defendants’ argument that the breach of contract claim in

this case does not involve an assertion of bad faith, (Doc. #191,

p. 7); #172, p. 3 n.1) is factually incorrect. See Doc. #87, ¶¶

206-207, 211, 212-218.

action against an insurer to settle its rights under the policy."

Stein, LLC v. Lawyers Title Ins. Corp., 953 N.Y.S.2d 303, 304

(2012)(internal quotations and citation omitted). See also Santoro

v. GEICO, 986 N.Y.S.2d 572, 574 (N.Y. App. Div. 2014) (noting that

under Panasia, consequential damages were recoverable, but “the

only consequential damages asserted by the plaintiff are

attorney’s fee and costs and disbursements resulting from this

affirmative litigation, which are not recoverable[.]”); Goodfellow

v. Allstate Indem. Co., No. 14-CV-642S, 2014 U.S. Dist. LEXIS

177835, 2014 WL 7384239, at *4 (W.D.N.Y. Dec. 29, 2014) (finding

plaintiff could not recover attorney's fees, costs, and litigation

expenses as a form of consequential damages).

Even if attorney fees could be a component of consequential

damages, Plaintiff has not pointed to, nor has the Court found,

any specific provision within the Individual Policies (Docs. ##87-

1; 87-2; 87-3; 87-4) suggesting that at the time the Individual

Policies were executed, the parties’ contemplated attorney fees as

a component of consequential damages. Therefore, applying New

York law, Plaintiff may not recover attorney fees as a component

of consequential damages. Dr. Allen’s motion in limine (Doc. #164)

is denied. Defendants’ motion in limine (Doc. #172) is granted to

the extent Dr. Allen may not attempt to introduce evidence at trial

whose sole purpose is to establish entitlement to attorney fees as

a component of consequential damages without the prior approval of

the Court.

(2) Testimony of Physicians

Both sides have filed motions in limine seeking to preclude

or limit testimony by certain physicians. (Docs. ## 165, 174.)

Both sides agree that none of these physicians have been listed as

expert witnesses. See Joint Final Pretrial Statement, Doc. #179,

p. 13.

Dr. Allen’s motion in limine (Doc. #165) seeks to preclude or

limit the testimony of Drs. Matthew Kay, David DiLoreto, Judith

Cohen, and Richard Eisenberg, alleging violations of Federal Rule

of Civil Procedure 26. (Id. at 1, 3-6.) Drs. Kay and DiLoreto

conducted Independent Medical Examinations (IMEs) of Dr. Allen in

December 2014 and August 2015, respectively. (Doc. #1; Doc. #188,

p. 2.) Dr. Cohen and Dr. Eisenberg never examined Plaintiff, but

reviewed medical records or communicated with Plaintiff’s

physicians. Dr. Allen asserts that all four witnesses are really

being called as expert witnesses, but Defendants have failed to

identify them as such, as required by Federal Rule of Civil

Procedure 26(a), or file expert reports, as required by Rule

26(a)(2)(B) or (a)(2)(C). Dr. Allen argues that all their testimony

should be precluded as confusing to the jury and unfairly

prejudicial. (Id., pp. 13-14.) Alternatively, Dr. Allen argues

that any testimony should be limited to what the IME physicians

observed upon their examinations of Dr. Allen or what a lay witness

who reviewed documents observed. (Id., pp. 18-20.)

In a similar vein, Defendants seeks to prevent or limit Dr.

Allen from introducing expert testimony from Dr. Stephen Schwartz,

a physician who saw Dr. Allen between one and three times

(depending upon who is setting forth the facts.) (Doc. #174, p.

1.) Dr. Allen identified Dr. Schwartz as a potential witness with

“knowledge regarding Plaintiff’s medical conditions/disability,”

but he did not identify Dr. Schwartz as an expert witness or

provide an expert report. (Id., pp. 2-3.) Defendants request

that Dr. Schwartz’s testimony be excluded or limited to that of a

lay witness based only upon his personal knowledge resulting from

providing medical care to Plaintiff. (Id., pp. 5-6.)

While Rule 26(a)(2) governs disclosures by expert witnesses,

it does not relate to witnesses offering lay opinions under Rule

701. "[A] party must disclose to the other parties the identity

of any witness it may use at trial to present evidence under

Federal Rule of Evidence 702, 703, or 705." Fed. R. Civ. P.

26(a)(2)(A). Therefore, neither side has violated their discovery

obligations under Rule 26(a).

None of the five physician-witnesses are allowed to testify

as an expert witness. This does not, however, eliminate all

opinion testimony. “Under Federal Rule of Evidence 701, a lay

witness may offer opinion testimony if the testimony is ‘(a)

rationally based on the witness's perception; (b) helpful to

clearly understanding the witness's testimony or to determining a

fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.’” United States

v. Estrada, 969 F.3d 1245, 1270–71 (11th Cir. 2020) (quoting Fed.

R. Evid. 701).

“Notably, Rule 701 does not prohibit lay

witnesses from testifying based on

particularized knowledge gained from their own

personal experiences.” United States v. Jeri,

869 F.3d 1247, 1265 (11th Cir. 2017) (internal

quotation marks omitted).

Omni Health Sols., LLC v. Zurich Am. Ins. Co., 19-12406, 2021 WL

2025146 (11th Cir. May 21, 2021).

The Eleventh Circuit has quoted with approval the statement

that “[a] treating physician is not considered an expert witness

if he or she testifies about observations based on personal

knowledge, including the treatment of the party,” and that a

physician may offer lay opinion testimony, consistent with Rule

701, when the opinion is “based on his experience as a physician

and [is] clearly helpful to an understanding of his decision making

process in the situation.” Williams v. Mast Biosurgery USA, Inc.,

644 F.3d 1312, 1317–18 (11th Cir. 2011)(citations omitted).

Testimony based on a hypothesis “crosses the line from lay to

expert testimony, and it must comply with the requirements of Rule

702 and the strictures of Daubert.” Id. Thus, a physician may

testify as a lay witness regarding his observations and decisions

during treatment or observation of a patient, but may not express

an opinion unrelated to treatment which is “based on scientific,

technical, or other specialized knowledge.” Wilson v. Taser

Intern., Inc., 303 Fed. Appx. 708, 712 (11th Cir. 2008).

The record is clear that none of the witnesses are being

offered as expert witnesses, and their testimony will be limited

to that allowed by a lay witness under Rule 701. Accordingly, the

Court grants both motions in limine (Docs. ## 165, 174) to the

extent each seeks to preclude expert opinion testimony from any of

the five physicians. Nevertheless, the exact boundaries of proper

lay witness testimony will have to be addressed at trial by way of

specific objections to specific testimony. See Torres v. First

Transit, Inc., No. 17-cv-81162-BLOOM/Reinhart, 2018 U.S. Dist.

LEXIS 131565, at *9 (S.D. Fla. Aug. 6, 2018) (noting that "[t]he

exact boundaries of [a] . . . physician's testimony may need to be

addressed with specific objections to specific testimony in the

context of trial".)

(3) Objective Evidence Requirement

Dr. Allen seeks to exclude evidence or argument that there is

a requirement for objective evidence to prove total disability

under the Individual Policies. (Doc. #166, p. 1.) Dr. Allen

maintains that the Individual Policies do not contain such a

requirement, so that evidence of a lack of objective evidence is

irrelevant and inadmissible.

The Individual Policies require Dr. Allen to submit proof of

loss showing that he meets the definition of Total Disability in

the Individual Policies. The definition of Total Disability is

identical for Individual Policies ## 87-1, 87-2, 87-3, but

different for Individual Policy #87-4. All four Individual

Policies define Total Disability to mean that “due to Injuries or

Sickness” Dr. Allen is “not able to perform the substantial and

material duties of your occupation.” Individual Policies #87-1

through #87-3 also require that Dr. Allen is “under the care and

attendance of a Physician.” Individual Policy #87-4 requires that

Dr. Allen is “receiving care by a Physician which is appropriate

for the conditions causing the disability.”

Defendants’ termination of benefits under the Individual

Policies did refer to the absence of objective evidence. (Doc.

#166, p. 3.) It does not appear, however, that Defendants maintain

that any of the Individual Policies require objective evidence of

a disability (Doc. #192, p. 4), and it appears undisputed that

there are no objective tests to demonstrate how a patient perceives

floaters. (Id., pp. 4-10.)

The failure to require objective evidence does not mean that

the lack of objective evidence is not relevant and admissible.

Defendants may clearly take the nature of the evidence into

consideration in determining whether to terminate benefits, just

as it could be considered in determining whether to award benefits.

Badawy v. First Reliance Standard Life Ins. Co., 581 F. Supp. 2d

594, 603 (S.D.N.Y. 2008) ("It is not unreasonable for an insurer

to credit objective evidence over subjective evidence."). Such

evidence is also relevant for a jury’s determination of total

disability. “The issue of total disability is a question of fact

for the jury to determine,” and the jury may weigh the totality of

the evidence, which includes Plaintiff’s credible subjective

complaints against the presence or absence of objective medical

findings. Plaintiff’s motion in limine (Doc. #166) is denied.

(4) Evidence Regarding Refusal of Surgery

Dr. Allen seeks to preclude evidence that he refused surgical

intervention for his eye condition. (Doc. #167, p. 1.) Plaintiff

argues that the unambiguous language of the Individual Polices do

not mandate corrective surgery, and New York laws does not require

it. (Id., pp. 4-5.) Defendants respond that the issue is whether

surgical intervention for Plaintiff’s allegedly disabling floaters

is “appropriate care” under Individual Policy #87-4 language,

which is a disputed fact that can only be resolved by a jury. (Doc.

#190, p. 7.)

The parties do not dispute that Dr. Allen’s Individual

Policies #87-1 through #87-3 require that Dr. Allen be “under the

care and attendance of a Physician”, while Individual Policy #87-

4 requires that Dr. Allen is “receiving care by a Physician which

is appropriate for the condition causing disability.” Courts have

interpreted this latter policy provision as broadly and

unambiguously creating an “explicit duty to seek and accept

appropriate care.” Provident Life and Accident Ins. Co. v. Henry,

106 F. Supp. 2d 1002 (C.D. Cal. 2000); see, e.g., Reznick v.

Provident Life & Accident Ins. Co., 364 F. Supp. 2d 635, 637-38

(E.D. Mich. 2005) (interpreting policy language requiring insured

to be "receiving care by a Physician which is appropriate for the

conditions causing the disability" as unambiguously imposing on

claimant "duty to seek and accept appropriate care"); Buck v. Unum

Life Ins. Co., No. C-08-5166 MMC, 2010 U.S. Dist. LEXIS 22479, at

*18 (N.D. Cal. 2010) (same). The issues become what is

“appropriate care” for Plaintiff’s disabling condition, and

whether this includes surgical intervention.

There is conflicting medical evidence between Plaintiff’s

treating ophthalmologist Dr. Andrews, who recommended Plaintiff

not undergo the vitrectomy (Doc. #148-4, p. 203), and consulting

ophthalmologist Dr. DiLoreto, who “strongly disagreed” with Dr.

Andrews’ opinion because the risks associated with the surgery

were “very low” and the surgery could cure Dr. Allen’s eye

condition. (Id., p. 206.) Because a trier of fact may credit one

physician’s opinion over another, whether Plaintiff was obligated

to have the surgery is a question to be resolved by a jury in its

determination of appropriate care. See Buck, 2010 U.S. Dist. LEXIS

22479, at *20 (finding there was a triable issue of fact where

there was conflicting medical evidence about whether surgery was

proper after Unum denied benefits).

Dr. Allen relies upon Poole v. R.R. Ret. Bd., 905 F.2d 654,

664 (2d Cir. 1990) and Azeez v. Unum Life Insurance Company of

America, No. 05CV4611ERKJMA, 2007 WL 9718990, (E.D.N.Y. Jan. 16,

2007), to assert that New York law does not require a disabled

insured to undergo surgery, and thus Defendants should not be able

to present evidence that Plaintiff declined surgery. (Doc. #167,

pp. 6-7.) These cases are not applicable to the matter at hand

since neither Poole nor Azeez considered similar policy language.

Dr. Allen implies that the evidence should be excluded because

Defendants had previously found Plaintiff’s failure to undergo

surgery to be “appropriate.” This is based on the claims file notes

stating “[a]dditional surgery may improve EE’s [Dr. Allen’s]

condition further; however, has not been recommended by his

physicians, which is appropriate.” (Doc. #167, pp. 7-8.) While

this may be considered by the jury, it is certainly not a basis to

exclude evidence. See Burkhart v. R.J. Reynolds Tobacco Co., 2014

U.S. Dist. LEXIS 200593, 2014 WL 12617550, *4 (M.D. Fla. Apr. 30,

2014 ("[A] motion in limine should not be used to resolve factual

disputes or weigh evidence.").

Finally, Plaintiff’s motion asserts that if Defendants truly

believed that a vitrectomy surgery was the “appropriate care”

required by his Individual Policy, then Defendants were required

to notify Plaintiff of his failure to comply with this condition

and provide an opportunity to receive the appropriate care, which

they failed to do. (Doc. #167, pp. 12-13.) But such a claim goes

far beyond the proper scope of a motion in limine. See Whidden v.

Roberts, 334 F.R.D. 321, 324-25 (N.D. Fla. 2020) ("A motion in

limine is not a permissible substitute for a motion for summary

judgment."). Plaintiff’s motion in limine (Doc. #167) is therefore

denied.

(5) Evidence Related To A Different Occupational Standard

Dr. Allen seeks to preclude admission of evidence related to

an occupational standard different than the one Defendants applied

during the administration of his claims. (Doc. #168, p. 1.)

Specifically, Dr. Allen asserts that the parties had agreed Dr.

Allen needed “detailed visual acuity with no obstructions” to be

able to perform the material and substantial duties of his

occupation. (Id., p. 8; Doc. #148-2, pp. 55-59.) Dr. Allen argues

that Defendants should be precluded from offering any contrary

disability standard because it would be confusing, irrelevant, and

make Plaintiff assume a burden of proof that is not called for.

(Doc. #168, p. 9.)

Total disability is defined by the Individual Policies to

include the requirement that Dr. Allen is not able to perform “the

substantial and material duties of his occupation.” The parties

dispute the proper disability standard which should be utilized to

determine whether Plaintiff can perform these duties of his

occupation. Dr. Allen asserts that to perform the substantial and

material duties of his occupation requires “detailed visual acuity

with no obstructions,” while Defendants argue that a radiologist

like Plaintiff only needs “normal vision.” (Doc. #194, pp. 3-4.)

This is clearly a question of fact for the jury to consider. See

McGrail v. Equitable Life Assur. Soc. of U.S., 292 N.Y. 419, 55

N.E.2d 483 (1944); Sun Life Ins. Co. v. Evans, 340 So. 2d 957, 959

(Fla. 3d DCA 1976)(“The phrase total disability is a relative term,

depending upon the character of the occupation, the capabilities

of the insured and the circumstances of the particular case, so

that ordinarily, any question involving application of the term

total disability, is a question of fact for the jury.”).

Accordingly, Plaintiff’s motion (Doc. #168) is denied.

(6) Dr. Allen’s Plan to Resign from Prospect Hill Radiology

Dr. Allen seeks to exclude any evidence regarding his former

plan to resign as a partner at Prospect Hill Radiology Group, P.C.

(Prospect Hill) in April 2010 and relocate to Florida. (Doc. #169,

pp. 1-2.) Dr. Allen asserts Defendants considered his disability

claims fully aware of his pre-disability plans to resign as a

partner of Prospect Hill and return to work as an employee, which

never came to pass due to his total disability. (Id., p. 7.) Dr.

Allen asserts that despite Defendants’ suggestion that he is

malingering and not actually disabled, Defendants never made

reference to pre-disability plans or relocation as a basis for the

termination of benefits, thus any such evidence is irrelevant.

(Id., pp. 2, 7-9.) Dr. Allen further asserts that even if he had

resigned and eventually returned to Prospect Hill to work as an

employee, he still would have been entitled to benefits since he

was “regularly engaged” in his radiological occupation. (Id., pp.

9-13.) In sum, Dr. Allen contends that any evidence of his

anticipated resignation or relocation should be precluded under

Rule 403 of the Federal Rules of Evidence because it is irrelevant

and unduly prejudicial. (Id., pp. 2-3, 13.)

Defendants, on the other hand, assert that it was not until

discovery took place that they received evidence that revealed

Plaintiff’s intent to “retire” from his occupation prior to

experiencing the first eye-related symptom3 (Doc. #196, p. 4),

which was completely different from Plaintiff’s initial

explanation that he resigned from his position with Prospect Hill

3 In their Response, Defendants provide an April 20, 2010

email from Dr. Allen entitled “retirement” that discusses whether

he should provide a formal letter of resignation at the next

partnership meeting. (Doc. #196, p. 4.)

on June 23, 2010 due to his eye-related symptoms that appeared on

May 1, 2010. (Id., p. 5.) Defendants argue that these facts would

allow a jury to reasonably infer that Plaintiff ceased work for

non-health related reasons, i.e., retirement, and that his

subjectively functional limitations lack credibility. (Id., pp. 2-

4.)

The Court denies Dr. Allen’s motion on two bases. First, there

remains a factual dispute over whether Plaintiff resigned due to

his eye condition preventing him from performing his work duties,

or for non-health related purposes prior to any manifestation of

his condition. This dispute may not properly be resolved in a

motion in limine. See Burkhart, 2014 WL 12617550, *4 ("[A] motion

in limine should not be used to resolve factual disputes or weigh

evidence."). Second, these factual issues ultimately bear on

Plaintiff’s credibility, which is a relevant matter for the jury.

Whether Dr. Allen’s stated reasons for leaving his job as a

diagnostic radiologist were pretextual is relevant to the weight

the jury may give to Plaintiff’s explanations of the ongoing

severity of his disability. The Court finds the probative value

of the evidence outweighs the risk of prejudice, and the evidence

is admissible. See United States v. Norton, 867 F.2d 1354, 1361

(11th Cir. 1989) ("Rule 403 is an extraordinary remedy which should

be used only sparingly since it permits the trial court to exclude

concededly probative evidence. The balance under the Rule,

therefore, should be struck in favor of admissibility." (marks and

citations omitted)). The motion is denied.

(7) The “Scheme” and Claim Handling Issues

Defendants seek to preclude evidence of their alleged

“scheme” and claim handling issues. (Doc. #173, p. 1.) Defendants

maintain that such evidence is only related to Plaintiff’s RICO,

fraud and breach of fiduciary duty claims, all of which have

already been dismissed by this Court. (Id.) Defendants assert

that the only remaining breach of contract claim involves issues

of whether Plaintiff was totally disabled when his benefits were

terminated and whether Plaintiff satisfied the conditions

precedent to coverage under the Individual Policies. (Id., pp. 2-

3.) Defendants therefore request an order excluding from trial

any contentions, arguments or evidence that Defendants and its

employees and/or agents:

(a) engaged in bad faith, oppression, fraud, malice,

and/or the operation of a continuing and ongoing scheme

to defraud Plaintiff and/or other policy-holders; (b)

acted improperly in the handling of Plaintiff’s claim

and/or failed to conduct a reasonable investigation

thereof; (c) failed to timely (or otherwise) respond to

either Plaintiff or his attorney; (d) failed to timely

(or otherwise) review Plaintiff’s medical records; (e)

had no intention of honoring the explicit terms of the

Policy; (f) induced Plaintiff to purchase the Policy and

collected premium payments for an extended period of

time; (g) failed to follow Defendants’ procedures when

faced with Plaintiff’s claim and others like his; (h)

worked to defraud Plaintiff through the denial of a

legitimate claim; and (i) engaged in unfair claims

practices.

(Doc. #173, pp. 3-4.)

Dr. Allen argues that evidence related to the dismissed claims

is relevant to and imperative to establishing the remaining claim.

(Doc. #186, pp. 5-7.) For instance, evidence that Defendants

improperly handled Plaintiff’s claim by “failing to review

Plaintiff’s medical records . . . or to follow their own written

claims procedures . . .” would be relevant to Plaintiff’s breach

of contract claim. (Id.)

No party may present evidence or argument that there were

other claims which have been dismissed by the Court. While

reference to such claims is excluded, evidence which may have

supported such claims may also support the current claim. Bi-

Economy Mkt., Inc., 10 N.Y.3d at 194 (2008) (“As in all contracts,

implicit in contracts of insurance is a covenant of good faith and

fair dealing, such that "a reasonable insured would understand

that the insurer promises to investigate in good faith and pay

covered claims.").

Evidence of alleged misconduct in connection with the

processing of Dr. Allen’s disability claims is relevant to the

good faith component of Count 1. Therefore, the motion in limine

as to evidence of the handling of Dr. Allen’s claim (as opposed to

references to the dismissed claims or mishandling of other claims)

is denied.

(8) Social Security Administration Decision

Defendants instructed Dr. Allen to apply for Social Security

disability benefits, as was their right under the Individual

Policies. The resulting Social Security Administration (SSA)

Decision concluded, among other things, that Plaintiff was

disabled from performing his duties as a radiologist, but was not

disabled from performing other work which existed in the national

economy. Social security disability benefits were therefore

denied.

Defendants seek to exclude evidence which in any manner refers

to the SSA’s decision on Plaintiff’s entitlement to disability

benefits. (Doc. #175, p. 1.) Defendants argue that the SSA decision

is not admissible because (1) such evidence is irrelevant under

Federal Rule of Evidence 401, or its probative value is

substantially outweighed by its prejudicial effect, its tendency

to cause confusion of the issues, and its tendency to mislead the

jury under Rule 403; and (2) Plaintiff has not listed the SSA, or

authors of any SSA determination on his witness list, thus the

report is inadmissible hearsay pursuant to Rule 802. (Id., pp. 1-

2.) Defendants emphasize that this case involves Plaintiff’s claim

for total disability benefits under the Individual Policies, not

under the SSA disability standard. (Id., p. 2.)

Dr. Allen, on the other hand, argues that the SSA decision is

relevant to this case as it demonstrates that he was found to be

unable to perform his job as a diagnostic radiologist and

Defendants considered the SSA’s findings in making its total

disability determination. (Doc. #186, pp. 7-9.) Dr. Allen also

points out that Unum’s internal policy requires that the SSA’s

determination of disability be given “significant weight,” which

indicates that “the SSA’s judgment that a claimant is disabled

will weigh heavily in the claimant’s favor as [Unum} makes [its]

own disability determination under the applicable company policy.”

(Doc. #148-2, pp. 177-178, 342; Doc. #186, pp. 11-12.)

The Court finds that the SSA disability decision as to Dr.

Allen’s position as a radiologist is relevant, although not

dispositive. Sparks v. Unum Life Ins. Co., 225 F.3d 659 (6th Cir.

2000)(denying defendant’s motion in limine based upon a finding

that the SSA's determination of disability was relevant to a

determination of total disability under an insurance policy, but

"it [was] not dispositive given the substantial differences

between the SSA's and the [insurer's] plan's working definitions

of disability."). “[T]he SSA’s determination has some relevance

because it addressed [P]laintiff’s condition during the period

relevant to this case.” Parker v. Reliance Standard Life Ins. Co.,

99 Civ. 1822 (RMB)(THK), 2000 U.S. Dist. LEXIS 784, at *13

(S.D.N.Y. Jan. 27, 2000).

The Court also finds that the probative value of the SSA

decision is not substantially outweighed by any unfair prejudicial

effect, confusion of the issues, or a tendency to mislead the jury.

See McElgunn, 2009 U.S. Dist. LEXIS 46498, at *28 (finding the

same). Defendants directed that Dr. Allen apply for Social

Security benefits, and have been aware of the SSA’s disability

determination since July 2013 (Doc. #105, ¶ 82). Defendants had

ample time to consider the SSA’s decision. Defendants stated in a

September 6, 2016 letter that they received the SSA’s determination

and agreed (at that time) with the SSA that Dr. Allen was unable

to perform his occupational duties as a diagnostic radiologist,

and took into consideration these findings when they acknowledged

Plaintiff’s total disability from June 2010 through August 2015,

and when they terminated benefits. (Doc. #186-1, pp. 1-2.)

Additionally, “the fact that the social security standard for

disability determination may be different from that required by

the insurance policy may be explained to the jury to avoid any

confusion.” McElgunn, 2009 U.S. Dist. LEXIS 46498, at *28.

The Court need not decide the admissibility of all or part of

the SSA decision prior to trial. Plaintiff bears the burden of

proof at trial, which may well depend on the record at the time.

See, e.g., under Rule 802(d)(2)(B) the SSA’s decision may not be

hearsay if Defendants adopted the decision and believed it to be

true. (Doc. #186, p. 14.); United States v. Rivera, 780 F.3d 1084,

1092 (11th Cir. 2015)(holding that “[o]ut-of-court declarations .

. . offered only to show their effect on the listener” did not

constitute hearsay)). Accordingly, Defendants’ motion in limine

to exclude evidence at trial which in any manner refers to the

Social Security Administration’s decision on Plaintiff’s

entitlement to disability benefits is hereby denied.

Accordingly, it is now

ORDERED:

1. Plaintiff’s Motion in Limine and/or Argument Regarding

Plaintiff’s Claim for Consequential Damages (Doc. #164) is

DENIED.

2. Plaintiff’s Motion in Limine to Preclude or Limit Expert

Testimony of Physicians Employed or Retained by Defendants

(Doc. #165) is GRANTED to the extent Drs. Kay, DiLoreto, Cohen

and Eisenberg may not testify as expert witnesses pursuant to

Fed. R. Evid. 702, but may testify as a lay witness pursuant

to Fed. R. Evid. 701.

3. Plaintiff’s Motion in Limine to Preclude Introduction of

Alleged Objective Evidence Requirement (Doc. #166) is DENIED.

4. Plaintiff’s Motion in Limine on Appropriate Care to Exclude

Evidence Regarding Surgery (Doc. #167) is DENIED.

5. Plaintiff’s Motion in Limine to Preclude Admission of

Evidence Related to a Different Occupational Standard at

Trial (Doc. #168) is DENIED.

6. Plaintiff’s Motion in Limine to Exclude Any Evidence

Regarding His Alleged Plan to Resign From His Partnership

(Doc. #169) is DENIED.

7. Defendants’ Motion in Limine Regarding Attorney Fees and

Consequential Damages (Doc. #172) is GRANTED to the extent

Dr. Allen may not introduce at trial whose sole purpose is to

establish entitlement to attorney fees as a component of

consequential damages without prior approval of the Court.

The Motion is otherwise DENIED.

8. Defendants’ Motion in Limine to Preclude Plaintiff from

Introducing Evidence of Defendants’ Alleged Scheme and Claim

Handling Issues (Doc. #173) is DENIED as to the handling of

Dr. Allen’s claim (as opposed to references to the dismissed

claims or mishandling of other claims).

9. Defendants’ Motion in Limine Regarding Testimony From Dr.

Schwartz (Doc. #174) is GRANTED to the extent Dr. Schwartz

may not testify as expert witnesses pursuant to Fed. R. Evid.

702, but may testify as a lay witness pursuant to Fed. R.

Evid. 701.

10. Defendants’ Motion in Limine to Exclude Evidence Related to

the Social Security Administration’s June 28, 2013 Decision

(Doc. #175) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 22nd day of

February, 2022,

Z tkicob

JQH E. STEELE

SHMIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record