IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

HERMAN OLDS, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 09-0192-WS-N

 )

RETIREMENT PLAN OF )

INTERNATIONAL PAPER COMPANY, )

INC., )

 )

Defendant. )

ORDER 

This matter is before the Court on the defendant’s motion in limine. (Doc. 35). 

The plaintiff has filed a response, (Doc. 37), and the motion is ripe for resolution. 

The single count of the complaint alleges that the Plan wrongfully denied the

plaintiff’s claim for disability and thereby violated ERISA. (Doc. 1). The joint pretrial

document confirms this is the only claim in the lawsuit. (Doc. 33 at 2).

The parties agree that “the arbitrary and capricious standard of review applies.”

(Doc. 33 at 4). They also agree that, “[u]nder the arbitrary and capricious standard of

review, the Court’s review of the Retirement Plan’s benefits decision is limited to the

administrative record before the Plan Administrator at the time the decision was made.” 

(Id.). That is, the trial court “does not take evidence, but, rather, evaluates the

reasonableness of an administrative determination in light of the record compiled before

the plan fiduciary.” (Id. (internal quotes omitted)). In reliance on these agreed principles

and the cases underlying them, the defendant moves the Court “to exclude from trial any

evidence that was not submitted to or collected by the Retirement Plan for consideration

during the administrative claim review.” (Doc. 35 at 1). 

The plaintiff counters that evidence beyond the administrative record is allowed

when “related to either interpreting the plan or explaining medical terms and procedures

Case 2:09-cv-00192-WS-N Document 38 Filed 05/11/10 Page 1 of 4
1

The joint pretrial document states that the plaintiff “[p]lans to submit the medical

records for the physicians, who will be called to testify in this matter.” (Doc. 33 at 13). 

Because the plaintiff’s list of trial witnesses does not include Drs. Romeo and Kirkland,

(id. at 12), neither does his exhibit list include their medical records.

-2-

relating to the claim.” (Doc. 37 at 2, ¶ 2). The single case on which he relies supports

this proposition only with respect to interpreting the plan, but the plaintiff identifies no

dispute concerning the interpretation of the subject plan.

The plaintiff does assert that the medical records of Drs. Romeo and Kirkland

“help explain the medical terms and procedures used to treat the Plaintiff for the disability

listed in his disability application.” (Doc. 37 at 3, ¶ 6). As a threshold matter, these

documents are already in the administrative record. (Doc. 23, Exhibit C, Part I at Olds

64-69, 72-76, 81-96; id. Part II at Olds 97-129). Indeed, the plaintiff admits as much. 

(Doc. 37 at 2-3, ¶¶ 4-5). To the extent the plaintiff desires to present additional records

from these providers, he cites no authority for the proposition that evidence extrinsic to

the administrative record can be used to explain medical terms and procedures. At any

rate, he did not list any such documents in his list of trial exhibits,1

 and it is too late to do

so now. (Doc. 17, Attachment at 4, ¶ 4.J). The plaintiff’s effort to call Drs. Romeo and

Kirkland as witnesses, (Doc. 37 at 3, ¶ 6), fails for the same reasons, including the

plaintiff’s failure to list them as witnesses in the pretrial document. (Doc. 33 at 12).

The plaintiff also argues he should be allowed to testify, in order “to state with

specificity in the record before the Court the details of his complaints.” (Doc. 37 at 3-4,

¶¶ 7-8). The plaintiff argues that, because the medical records in the administrative file

reference pain and swelling in his lower extremities stemming from chronic venous stasis,

his presentation of more detail concerning this condition and its effects on his ability to

work “is not new evidence.” (Id. at 4, ¶ 8). What the plaintiff proposes, however, is

precisely what the governing law (which he acknowledges) prohibits: presenting

additional evidence of the existence, severity and consequences of the physical condition

on which he bases his claim of disability. 

Case 2:09-cv-00192-WS-N Document 38 Filed 05/11/10 Page 2 of 4
2

The principal brief must include and support, with legal authority and cogent

discussion, all bases asserted by the plaintiff in support of the proposition that the

defendant’s decision was arbitrary and capricious. District courts, including this one,

ordinarily do not consider arguments raised for the first time on reply. See Park City

Water Authority v. North Fork Apartments, L .P. 2009 WL 4898354 at *1 n.2 (S.D. Ala.

2009) (citing cases from over 40 districts applying the rule in 2009 alone).

3

The defendant is ordered to file and serve the administrative record on or before

May 18, 2010, along with the hard copy required by the Rule 16(b) scheduling order. 

(Doc. 17 at 7, ¶ 13.c). 

4

The parties may not incorporate by reference previous briefs or portions thereof,

except that the plaintiff in his reply brief may rely on portions of his principal brief.

-3-

For the reasons set forth above, the defendant’s motion in limine is granted. 

Neither party will be allowed to present evidence outside the administrative record. The

only such evidence identified by the defendant is the presentation of two witnesses to

authenticate the administrative record. (Doc. 33 at 11-12). At the pretrial conference, the

plaintiff stipulated to that record, so there is no need for the authenticating witnesses. 

Because no evidence beyond the administrative record will be received, the hearing set

for May 24, 2010 is cancelled.

The burden is on the plaintiff to show that the defendant’s decision was arbitrary

and capricious. (Doc. 33 at 4). Accordingly, the plaintiff is ordered to file and serve his

principal brief in support of his claim on or before June 1, 2010.

2

 The defendant is

ordered to file and serve its responsive brief on or before June 15, 2010. The plaintiff is

ordered to file and serve any reply brief on or before June 29, 2010. The Court will take

the case under submission on June 29, 2010.3

Principal briefs are limited to 40 pages, the reply brief to 20 pages.4

 The Court

expects both sides to address the issues discussed in the Court’s order on motion for

summary judgment, (Doc. 27 at 6-10), much more helpfully than they have to date. The

Court also expects both sides to address the appropriate remedy should the Court

Case 2:09-cv-00192-WS-N Document 38 Filed 05/11/10 Page 3 of 4
5

By way of example only, should the plaintiff be awarded benefits (and, if so, in

what amount) or should the matter be remanded to the defendant for further proceedings

(and, if so, with what direction to the parties as to the nature of the proceedings and the

issues and evidence to be considered)?

-4-

determine that the defendant’s decision was wrong or arbitrary and capricious.5

DONE and ORDERED this 11th day of May, 2010.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

Case 2:09-cv-00192-WS-N Document 38 Filed 05/11/10 Page 4 of 4