FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH L. BERGER : CIVIL ACTION

:

v. :

:

THE PRUDENTIAL INSURANCE :

COMPANY OF AMERICA : NO. 04-5205

MEMORANDUM AND ORDER

McLaughlin, J. February 7, 2006

Kenneth Berger appeals the decision of The Prudential

Insurance Company of America (“Prudential”) to deny him

disability benefits under a plan regulated by the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§

1001-1461. Prudential’s denial was based upon its decision that

Berger was no longer disabled within the meaning of the plan.

Berger had spinal disc problems. He received benefits

from Prudential in 2000 and 2001, and underwent two spinal fusion

surgeries during that time. Six months after the second surgery,

Prudential terminated his receipt of benefits. Berger appealed

this decision three times, and Prudential upheld its denial each

time. Having exhausted his administrative remedies, Berger

appealed Prudential’s decision in state court, and Prudential

removed to this Court. The Court decides here the parties’

cross-motions for summary judgment.

The Court will grant Prudential’s motion for summary

judgment and deny Berger’s motion for summary judgment. The

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Court concludes that there is no genuine dispute of material

fact, and that Prudential’s decision should be upheld under a

slightly heightened arbitrary and capricious standard of review.

I. Facts

A. Parties

Berger was born on January 20, 1976. He worked for

Answer Think Consulting Group, Inc. (“Answer Think”) as a

computer consultant from July of 1998 until June of 2000, when he

first went on disability. His occupation was sedentary – he

spent most of his time sitting down. Prudential provided

disability insurance to Berger through its contract with Answer

Think. (Berger Mot. Summ. J. 1; Prudential Resp. 1).

B. Berger’s Medical History

Dr. Mitchell K. Freedman’s report of February 18, 2000,

indicates that Berger had had back pain since September of 1998,

when he was lifting weights and felt like his muscles slipped. 

In September of 1999, Berger developed pain in his left buttock,

and the pain flared up when he was shoveling several weeks before

his appointment with Dr. Freedman. The pain was worse with

sitting or bending and best when he changed position. 

(Administrative R. (“Pru”) 237-38).

Dr. Freedman’s report of June 2, 2000, indicates that

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Berger still had severe pain in his back, calf, and foot, which

worsened with sitting and improved with rest. An MRI of Berger’s

lumbar spine showed evidence of radial lucency in the L4 and L5

pedicles, a high intensity zone lesion at L5-S1, a small central

herniated disc at that level, and bulging at L4-5. Dr. Freedman

believed that Berger was most symptomatic related to his

discogenic changes, and noticed some radiculitis, or swelling. 

(Pru 239).

The July 3, 2000, report of Todd J. Albert, M.D.,

indicates that Berger was lifting weights over a year prior to

the report when he developed severe left-sided low back pain and

leg pain. Dr. Albert evaluated Berger’s X-rays and CT scans and

determined that he had an unhealed left-sided pedicle fracture

and right-sided spondylotic defect. (Pru 240).

Berger underwent posterior lumbar fusion surgery in his

L4-5 disc space on July 12, 2000. Dr. Albert’s reports from the

time between Berger’s first and second surgeries indicate that

Berger did not feel improvement, and that although some problems

had been corrected, Berger had significant degeneration at L4-5

in the disc space. On May 2, 2001, Berger underwent a second

surgery, a two level fusion revision. Dr. Albert predicted that

he would be “out of work for approximately six months after the

[second] surgery.” (Pru 200, 233, 242-46; Berger Mot. Summ. J.

4). 

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Dr. Albert’s nurse’s report of June 18, 2001, indicates

that Berger was neurologically intact, that the X-rays revealed

that the posterior instrumentation and interbody cage were

excellent, and that the patient still experienced “residual left

leg pain,” but was otherwise “doing well.” (Pru 248).

Dr. Albert’s report of August 6, 2001, three months

after the second surgery, indicates that Berger was feeling

better, but continued to have left leg sciatica which was worse

when he sat and somewhat improved when he stood. The report

indicates that he had no tension signs and full strength

throughout his lower extremities. (Pru 266).

Dr. Albert’s nurse’s report of October 30, 2001, six

months after the second surgery, indicates that Berger had

improved, that he experienced sciatic pain after rigorous

exercise at the gym, but that more aggressive exercise had caused

improvement over the last few weeks. The report indicates that

Berger was “neurologically intact” and that “X-rays reveal[ed]

excellent positioning of the instrumentation and placement of the

interbody cage.” On October 30, 2001, Dr. Albert wrote a letter

indicating that Berger was not able to return to work at that

time “due to physical restrictions.” (Pru 236, 264).

Dr. Albert’s report of January 8, 2002, eight months

after the second surgery, indicates that Berger continued to have

daily sciatic pain, and reiterates the other findings of the

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October 30, 2001 report. It indicates that Dr. Albert felt that

the patient was unable to return to work due to the sciatic pain. 

(Pru 252).

Dr. Albert’s letter of January 17, 2002, indicates that

Berger had “currently intractable back and leg pain,” and was

“disabled due to this pain” because it did “not allow him to sit

or stand for any prolonged period of time without exacerbating

his symptoms.” The letter indicates that “the patient would have

no specific restrictions if he had been in little to no pain.” 

(Pru 221).

Dr. Albert’s nurse’s progress note of May 13, 2002

indicates that Berger continued to do incrementally better, that

he still experienced a lot of leg pain with activity, but that he

felt that the pain was slowly improving. The report indicates

that Dr. Albert felt that Berger should continue with his

activities as tolerated and come back in a year. (Pru 138).

Dr. Albert indicates in a progress note of November 19,

2002, that Berger’s pain became worse in August, but then

improved. It indicates that the wound was well-healed, the

patient was neurologically intact, and his motor strength was

full. Dr. Albert recommended full activities. (Pru 137).

Dr. Albert’s letter of January 16, 2003, indicates that

Berger still had back pain and bilateral leg pain, which became

intolerable with sitting, precluded him from employment, and

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rendered him disabled. (Pru 151).

C. Initial Disability Determinations

Under Prudential’s plan, an employee is disabled when

Prudential determines that he is “unable to perform the material

and substantial duties of [his] regular occupation due to

sickness or injury.” Material and substantial duties are those

“normally required for the performance of [an employee’s] regular

occupation” which “cannot be reasonably omitted or modified.” 

(Pru 22).

Berger first applied for and received short-term

disability (“ST”) benefits in June of 2000. On August 28, 2000,

Prudential determined that Berger was totally disabled and

approved long-term disability (“LT”) benefits for him, effective

August 30, 2000. These benefits continued throughout 2000 and

into 2001. (Pru 267, 271).

In the SOAP Note of May 24, 2001, Prudential claim

manager Jacqueline Ganguzza noted that Berger’s attending

physician, Dr. Albert, assessed six months for full recovery. 

Thus, she found that he would be recovered and able to perform

his job by November 16, 2001, and recommended that his last day

of benefits should be November 15, 2001. Prudential accepted its

employee’s recommendation, and notified Berger on October 18,

2001, that his benefits would be terminated as of November 15,

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2001. (Pru 62, 114-15).

D. First Request for Reconsideration

Berger requested reconsideration of Prudential’s

decision on November 30, 2001. (Pru 183). 

Prudential reviewed the information submitted by

Berger, as well as the information already contained in his file. 

Its noted that X-rays and tests showed that Berger’s surgery was

successful. It considered his statements that he had improved. 

It noted his ability to perform rigorous exercise at the gym. 

(Pru 108). 

Based upon these considerations, Prudential concluded

that Berger had the ability to perform the material and

substantial duties of his sedentary occupation. It upheld its

decision to terminate Berger’s benefits as of November 15, 2001

on December 20, 2001. (Pru 108-110).

E. Second Request for Reconsideration

Berger requested a second reconsideration of the

decision on January 18, 2002. (Pru 179).

As part of the second reconsideration, Prudential

requested that Paul L. Liebert, M.D., an orthopedic surgeon,

perform an independent medical examination (“IME”) of Berger. 

This IME took place on March 26, 2002. On April 17, 2002, Dr.

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Liebert sent Prudential a report based upon this IME. (Pru 167). 

In the report, Dr. Liebert detailed Berger’s medical

history, including his visits to a chiropractor, Dr. Freedman,

Dr. Albert, and a Dr. Valentino, his first surgery, his physical

therapy, the MRI and discogram that led to his second surgery,

his doctor visits after the second surgery, and his reports of

continuing sciatic discomfort and continuing partial back pain. 

He noted that Berger was not currently undergoing physical

therapy but was exercising at home and going for regular walks. 

He noted that he used no assistive aids. Dr. Liebert provided a

detailed, seven page report that analyzed Berger’s pain profile

and medical documentation. He detailed the findings of his

physical examination and made an assessment based upon them. 

(Pru 167-73). 

He found that although Berger exhibited signs of low

back pain, he exhibited no signs of sciatic leg pain, of which he

chiefly complained. He found that there were no signs of

impingement or sciatica on provocative testing, no atrophy to

suggest disuse, and remarkably well-preserved leg musculature. 

He found mild and localized decreased sensation on the bottom of

Berger’s feet. He opined that the lower extremity pain was

poorly corroborated by objective physical examination or

electrodiagnostic findings. (Pru 167-73). 

Prudential’s phone records show that Dr. Liebert

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suggested that Dr. Albert had said that Berger either had a

psychological condition or was faking his pain. Dr. Liebert

inquired as to whether Prudential had considered surveillance of

Berger. Prudential responded that it could be considered, but it

never occurred. (Pru 81).

In addition to reiterating its reasons for its prior

determination that Berger was no longer disabled, Prudential

considered Dr. Liebert’s report. Based upon this information,

Prudential determined that Berger could perform his job as long

as he could change positions. Thus, it upheld its denial of

further benefits once again on April 24, 2002. (Pru 100-102).

F. Third Request for Reconsideration

Berger requested a third reconsideration of the denial

on January 16, 2003. (Pru 150).

As part of the third reconsideration, Prudential asked

Gale G. Brown, Jr., M.D., who is qualified in physical medicine

and rehabilitation, to conduct a medical file review for Berger. 

Dr. Brown reviewed the records of Drs. Freedman, Albert and

Liebert for the purpose of commenting on any medically

determinable impairment that would significantly restrict

Berger’s ability to perform the essential duties of his sedentary

occupation. (Pru 129).

Dr. Brown chronicled Berger’s doctor visits, surgeries,

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treatment and symptoms. The report concluded that the evidence

supported a finding of “mild musculoskeletal impairment” related

to Berger’s low back pain, but that there “[wa]s no medical

evidence supporting neurological impairment or spinal

instability.” The finding was based on the facts that Drs.

Albert and Liebert documented normal postoperative neurological

exams and X-rays. Dr. Brown noted that Dr. Albert specifically

noted that Berger’s fusion was solid during his November 19, 2002

office visit. Dr. Brown noted that Dr. Albert documented no

specific musculoskeletal abnormalities after the surgery, and

that Dr. Liebert, the IME orthopedist, noted mild impairments

consistent with mechanical low back pain. (Pru 129-34). 

Dr. Brown found that restrictions including hourly

position changes, occasional bending and twisting at the waist,

and no heavy lifting were necessary for Berger. Dr. Brown noted

that with these restrictions, Berger could perform his sedentary

occupation. (Pru 129-34). 

To further support this conclusion, Dr. Brown noted

that Berger admitted that he can sit or stand for up to an hour. 

She noted that his reported inability to work due to severe and

disabling pain is inconsistent with the facts that he takes no

medications, does no active physical therapy, and only

occasionally sees his physician. (Pru 129-34). 

Dr. Brown also noted that Dr. Albert’s opinions contain

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contradictions. For example, on November 19, 2002, he

recommended full activities with no specific restrictions. Two

months later, on January 16, 2003, he reported that the claimant

could not work due to reported severe pain and disability, but

offered no medical evidence to support this opinion, instead

documenting normal neurological exams, no musculoskeletal

findings, and a solid fusion without complication. Dr. Brown

also noted that Berger acknowledged his ability to perform

rigorous workouts. She noted that his “mild abnormal posturing

and splinting behavior during examination . . . suggest

inappropriate illness behavior.” (Pru 129-34). 

Prudential described Dr. Freedman’s, Dr. Albert’s, Dr.

Liebert’s and Dr. Brown’s findings in its final denial of

benefits on April 30, 2003. It concluded that Berger had mild

musculoskeletal impairment, and that he could perform his job

with the restrictions discussed in Dr. Brown’s report. (Pru 91-

93).

G. Prudential’s Contact with Berger’s Doctors

Prudential contacted and attempted to contact Berger’s

doctors on multiple occasions throughout this process. 

Prudential requested records from Dr. Freedman on January 30,

2001, and March 23 and 26, 2001. Prudential attempted to contact

Dr. Albert on December 13 and 21, 2000. Prudential contacted Dr.

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1 Under Fed. R. Civ. P. 56, summary judgment is appropriate

when, viewing the facts and inferences in the light most

favorable to the nonmoving party, there is no genuine issue as to

any material fact and the moving party is entitled to judgment as

a matter of law.

12

Albert in correspondence dated June 19, 2002 and August 5, 2002

to obtain Berger’s medical records from him. On February 12,

2003, Prudential requested medical records from Dr. Albert. On

February 13, March 7, and April 17 and 23, 2003, Prudential

communicated with Dr. Albert’s office again. Dr. Albert did not

return the calls. (Pru 72-75, 82-83, 97-98, 135, 204). 

II. Procedural History

Berger filed a complaint in the Court of Common Pleas

of Delaware County, Pennsylvania on September 22, 2004. 

Prudential filed a notice of removal in this court on November 8,

2004. Both parties filed motions for summary judgment on August

15, 2005.1

III. Standard of Review

The denial of ERISA benefits is reviewed under a de

novo standard, unless the benefit plan gives the administrator or

fiduciary the discretion to determine eligibility or construe the

plan terms, in which case an arbitrary and capricious standard

applies. Stratton v. E.I. Dupont De Nemours & Co., 363 F.3d 250,

253-54 (3d Cir. 2004). The arbitrary and capricious standard

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requires a court to defer to the plan administrator unless its

decision is “clearly not supported by the evidence in the record

or the administrator has failed to comply with the procedures

required by the plan.” Abnathya v. Hoffmann La Roche Inc., 2

F.3d 40, 41 (3d Cir. 1993). 

In cases that would normally fall in the arbitrary and

capricious category, but in which the insurance company both

determines benefit eligibility and pays those benefits out of its

own funds, the United States Court of Appeals for the Third

Circuit has held that a less deferential, heightened arbitrary

and capricious standard applies. Pinto v. Reliance Standard Life

Ins. Co., 214 F.3d 377, 378 (3d Cir. 2000). The rationale for

this heightened level of scrutiny is that in these cases,

“insurance carriers have an active incentive to deny close claims

in order to keep costs down and keep themselves competitive so

that companies will choose to use them as their insurers.” Id.

at 388.

In this case, the parties agree that Prudential

retained the discretion to determine eligibility and construe

terms, and it paid out the benefits. Thus, under Pinto, the

heightened arbitrary and capricious standard applies. The Pinto

court held that this heightened standard should be applied

through a sliding scale approach, under which the degree of

scrutiny intensifies to match the degree of conflict. Id. at

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379. Under this approach, courts examine the facts of each case

and may consider procedural irregularities. Id. at 393. 

There are several relevant procedural considerations

under this standard. If an insurance company treats the same

facts inconsistently, its decision may be viewed with suspicion. 

Id. at 394. The same is true if it considers some facts

presented to it, and ignores others that support a claimant’s

position. Id. Courts also consider whether insurance companies

follow the recommendations of their own employees in making

benefits decisions. Id.

Unlike in Pinto, Prudential’s decision to cut off

Berger’s benefits was not based upon inconsistent treatment of

the same facts. Rather, Prudential considered new information at

each step of the appeals process. When Berger first received

benefits, he had a left-sided pedicle fracture, a right-sided

spondylotic defect, a herniated disc, and back and leg pain. At

the point at which his benefits were cut off, Prudential had

information from several doctors indicating that Berger was

neurologically intact, and ready to resume full activities. 

Thus, Prudential’s initial decision to provide benefits and its

later decisions to deny benefits were based upon the improvement

in Berger’s condition after surgery. 

Berger argues that Prudential considered some

statements in Dr. Albert’s reports, and ignored others. The

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15

Court finds that Prudential considered all of the medical records

before it, and reached a different conclusion than Dr. Albert,

based in part upon the opinions of Drs. Liebert and Brown. The

reports of Drs. Liebert and Brown discussed the records of Drs.

Freedman and Albert in detail, noting those doctors’ comments on

both how Berger had improved and how he had not. Prudential

contacted Berger’s doctors several times to request more

information. Berger’s argument that Prudential’s disagreement

with Dr. Albert’s conclusion constitutes selective consideration

of information is without merit. 

Unlike the defendant in Pinto, Prudential followed the

advice of its own employee, Ms. Ganguzza, who recommended that

benefits be terminated. Ms. Ganguzza based her initial decision

upon the estimated recovery time for Berger provided by Dr.

Albert.

In addition to procedural irregularities, courts

calibrate the heightened arbitrary and capricious standard of

review based upon factors such as “the sophistication of the

parties, the information accessible to the parties, and the exact

financial arrangement between the insurer and the company.” Id.

at 392. Courts may also consider the current status of the

fiduciary employer because, for example, an employer on the brink

of dissolving has a diminished incentive to maintain employee

satisfaction. Id.

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16

As to the first factor, sophistication of the parties,

it is proper to “assume there was a sophistication imbalance

between the parties,” because “[t]here is no reason why [Berger]

would have had ERISA or claims experience, whereas [Prudential],

a large, successful company with many employees, had numerous

such claims.” Stratton, 363 F.3d at 254. It appears that

Prudential educated Berger as to his options at every stage of

the appeals process, so as to minimize the importance of this

gap. Nevertheless, the first factor weighs in favor of

heightening the standard.

Berger makes no arguments for a heightened standard

based upon a lack of access to information, or the finances or

status of Prudential or Answer Think. These factors do not

affect the arbitrary and capricious standard.

Thus, the appropriate standard appears to be one of

slightly heightened arbitrary and capricious review. In this

situation, it is appropriate for the Court to “apply the

arbitrary and capricious standard, and integrate conflicts as

factors in applying that standard, approximately calibrating the

intensity of [the] review to the intensity of the conflict.” Id.

at 255.

IV. Analysis

The Court must consider whether there are any genuine

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17

issues of material fact indicating that Prudential acted

arbitrarily and capriciously under the slightly heightened

standard when it ultimately concluded that Berger was not totally

disabled and therefore, was not entitled to LT benefits beyond

November 15, 2001. Berger argues that Prudential’s decision was

arbitrary and capricious because it was based upon a nonexamining physician’s records review and a biased examining

physician. He also argues that a finding that complaints of pain

are solely subjective does not justify a denial of benefits. 

Prudential argues that its decision should be upheld, as there is

no evidence of procedural irregularities or bias, and its denial

was appropriate based upon the record before it.

The Court must consider the evidence that an insurance

company considered to determine whether its decision was

arbitrary and capricious. See, e.g., Stratton, 363 F.3d at 257-

58 (applying the Pinto standard and holding that an insurance

company had properly denied benefits to an employee where it had

invited information from treating physicians, reviewed medical

reports, had its own physicians review the information, and

ultimately disagreed with the claimant’s treating physicians);

Abnathya, 2 F.3d at 42, 48 (upholding an insurance company’s

denial of benefits to a claimant in a sedentary occupation where

it had based its decision upon two independent medical

evaluations concluding that the claimant was not totally disabled

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18

despite her complaints that sitting for long periods of time

caused her pain in her neck, shoulders, and extremities, and her

claim that she was totally disabled). 

It is important to examine whether an insurance company

considers additional information and medical history from a

claimant’s previous treating physicians in making its decision. 

Stratton, 363 F.3d at 257. In addition, the number, credibility,

expertise, and familiarity with the claimant of the doctors upon

which an insurance company bases its decision are relevant. 

Pinto, 214 F.3d at 394. 

Although an insurance company may not arbitrarily

refuse to credit the opinions of a claimant’s treating

physicians, it is not required to accord special weight to those

opinions in the face of contrary evidence. Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003). As the United

States Supreme Court has noted, “if a consultant engaged by a

plan may have an ‘incentive’ to make a finding of ‘not disabled,’

so a treating physician, in a close case, may favor a finding of

‘disabled.’” Id. at 832.

It can be arbitrary and capricious to require

etiological evidence of the cause of a condition in order for a

claimant to be entitled to benefits, though this is not true in

every case. Mitchell v. Eastman Kodak Co., 113 F.3d 433, 443 (3d

Cir. 1997). In Mitchell, such a requirement was held to be

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19

arbitrary and capricious because the plan under which the

claimant claimed benefits did not require etiological proof under

the definition of “disabled,” the medical and legal communities

recognized that there was no objective test for the ailment of

which the claimant complained, and it was undisputed that

restricting activities was the only way to prevent exacerbation

of the claimant’s condition. Id. The Mitchell court noted that

“in some contexts it may not be arbitrary and capricious to

require clinical evidence of the etiology of allegedly disabling

symptoms in order to verify that there is no malingering.” Id.

at 442-43.

This case is analogous to Stratton and Abnathya. As in

Stratton, Prudential ultimately based its decision upon the

opinions of independent physicians, one of whom examined Berger

and both of whom considered his medical records. These

physicians were qualified in the relevant fields of orthopedic

surgery and physical medicine and rehabilitation. They examined

Berger’s medical history, giving due weight to Dr. Albert’s

findings, and drew their own conclusions. 

As in Abnathya, Prudential’s own experts concluded that

although Berger still experienced some pain, the conclusion that

this pain was disabling and prevented him from working was not

corroborated by the clinical and diagnostic evidence. Dr. Brown

noted that Berger takes no medication, does no formal physical

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2 Contrary to what Berger argues, Dr. Liebert’s suggestions

that Berger might have been exaggerating his injuries do not show

that the doctor was biased against him. Having seen that

Berger’s tests showed a lack of neurological problems and that

his actions showed at most slight pain, Dr. Liebert concluded

that his claims of severe pain may have been exaggerated.

20

therapy, and is capable of working out and driving. Drs. Liebert

and Brown noted that the testing performed on Berger did not

comport with his complaints of severe pain.2 Prudential decided

to credit these conclusions over Dr. Albert’s conclusions.

As courts have repeatedly held, Prudential was not

required to accord special weight to Dr. Albert’s findings. Dr.

Albert spent more time with Berger, and his opinion deserves

weight in this regard. However, he made inconsistent reports,

first concluding that Berger could engage in full activities and

noting that he could perform vigorous exercises at the gym, and

then claiming that he was completely disabled and unable to work

without providing any new information. Prudential was entitled

to credit the conclusions of Drs. Liebert and Brown over those of

Dr. Albert.

This case is distinguishable from Mitchell. Although

in both cases the plans did not require etiological evidence of a

disability, in Mitchell, there was no medical test which could

possibly provide such evidence. In contrast, in this case, the

medical tests before Berger’s surgery showed that he had visible

problems. After his second surgery, the tests showed that these

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21

problems had been solved. 

Another difference between the cases relates to the

curability and improvement of the claimants’ medical conditions. 

In Mitchell, limiting activities was the only cure for the

ailment at issue. Here, in contrast, surgery could be done, was

done, and was undisputably successful at fixing the pedicle

fracture and other visible problems that Berger’s earlier tests

had revealed. Also, in Mitchell, the claimant could only find

relief by restricting activities, but here even Berger’s own

doctor agreed that his pain was lessened when he changed

position. (Pru 197, 266). Even though Berger’s sedentary job

involved primarily sitting, he could be accommodated by

stretching and getting up from his seat at work, as Drs. Liebert

and Brown noted. An employee who can perform his job with

minimal accommodation is not disabled. 

The Court finds that Prudential did not act arbitrarily

and capriciously in terminating Berger’s benefits in view of its

thorough examinations of the evidence before it on multiple

occasions, the agreed-upon lack of any etiological evidence of

disability, and the observational and anecdotal evidence

indicating that Berger can perform many daily tasks, takes no

medication, does no formal therapy, and infrequently visits his

doctor.

 An Order follows.

Case 2:04-cv-05205-MAM Document 19 Filed 02/08/06 Page 21 of 22
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH L. BERGER : CIVIL ACTION

:

v. :

:

THE PRUDENTIAL INSURANCE :

COMPANY OF AMERICA : NO. 04-5205

ORDER

AND NOW, this 7th day of February, 2006, upon

consideration of the motions for summary judgment of both parties

(Docket Nos. 10 and 11), and all responses and replies thereto,

and after a hearing on October 27, 2005, IT IS HEREBY ORDERED

that, for the reasons set forth in a memorandum of today’s date,

the defendant’s motion for summary judgment is GRANTED and the

plaintiff’s motion for summary judgment is DENIED. Judgment is

entered in favor of the defendant and against the plaintiff. 

This case is closed.

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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