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SEDGWICK LLP

Michael H. Bernstein, pro hac vice

Daniel M. Meier

125 Broad Street, 39th Floor

New York, New York 10004-2400

Telephone: (212) 422-0202

Facsimile: (212) 422-0925

Attorneys for Defendants

Hartford Life and Accident

Insurance Company s/h/a

The Hartford Benefit Management 

Services and GDB Claims and 

Services Operations

UNITED STATES DISTRICT COURT

DISTRICT COURT OF NEW JERSEY

----------------------------------------------------------------x

JAMES WRIGHT,

Plaintiff,

-againstTHE HARTFORD BENEFIT MANAGEMENT 

SERVICES; GDB CLAIMS AND SERVICES 

OPERATIONS; ABC 1-10 (that being the names 

of the corporate entities, companies, partnership or 

individuals intended), 

Defendants.

Civil No.: 2:11-cv-00602 

Hon. Stanley R. Chesler, U.S.D.J.

Hon. Michael A. Shipp, U.S.M.J.

DEFENDANT’S REPLY 

MEMORANDUM OF LAW IN

FURTHER SUPPORT OF ITS 

MOTION TO STRIKE PORTIONS 

OF THE PLAINTIFF’S 

ATTORNEY’S AFFIDAVIT AND 

SEVERAL OF THE EXHIBITS 

ANNEXED THERETO

 Motion Date: February 21, 2012

----------------------------------------------------------------x

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TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES .........................................................................................................................ii

PRELIMINARY STATEMENT....................................................................................................................1

ARGUMENT.....................................................................................................................................................2

POINT I 

THIS COURT SHOULD STRIKE ALL EXHIBITS TO THE KUTYLA AFFIDAVIT

BECAUSE THEY ARE NOT PART OF THE ADMINISTRATIVE RECORD........................2

A. Wright‟s Extra-Record Submissions Must Be Stricken As Improper and 

Unauthenticated......................................................................................................................3

B. Dr. Garrison‟s Affidavit Constitutes Improper Extra-Record Testimony 

and Must Be Stricken .............................................................................................................4

POINT II 

WRIGHT‟S AMENDED RULE 56.1 STATEMENT IS PROCEDURALLY IMPROPER 

AND SHOULD BE STRIKEN ..............................................................................................................8

CONCLUSION...............................................................................................................................................10

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TABLE OF AUTHORITIES

Page(s)

CASES

Abnathya v. Hoffman-LaRoche, Inc., 

2 F.3d 40 (3d Cir. 1993)................................................................................................................................3

Baker v. The Hartford Life Ins. Co, 

No. 08–cv–6382, 2010 WL 2179150 (D.N.J. May 28, 2010)............................................................. 5, 6

Bergquist v. Aetna U.S. Healthcare,

289 F. Supp. 2d 400 (S.D.N.Y. 2003).................................................................................................... 5, 7

Capital Funding v. Chase Manhattan Bank USA, 

191 Fed. Appx. 92 (3d Cir. 2006)................................................................................................................9

Clark v. Clabaugh,

20 F.3d 1290 (3d Cir. 1994).........................................................................................................................4

Das v. UNUM Life Ins. Co. of America,

222 Fed.Appx. 126 (3d Cir. 2007).......................................................................................................... 5, 7

Fortune v. Group Long Term Disability Plan For Employees Of Keyspan Corp., 

391 Fed. Appx. 74 (2d Cir. 2010)................................................................................................................8

Hobson v. Metropolitan Life Ins. Co., 

574 F.3d 75 (2d Cir. 2009) ...........................................................................................................................3

J.F. Feeser. Inc. v. Serv-A-Porton, 

909 F.2d 1524 (3d Cir. 1990).......................................................................................................................9

John Deere Indus. Equipment Co. v. Tomasella , 

1990 WL 223521 (D.N.J. Dec. 18, 1990)...................................................................................................4

Johnson v. Guhl, 

91 F.Supp.2d 754 (D.N.J. 2000)..................................................................................................................4

Johnson v. UMWA Health & Retirement Funds, 

125 Fed. Appx. 400 (3d Cir. 2005) ........................................................................................................ 2, 3

Kosiba v. Merck & Co.,

No. 98-3571, 2011 WL 843927 (D.N.J., March 7, 2011) ........................................................................8

Marsh v. Crucible Inc. 1975 Salaried Retirement Plan,

783 F. Supp. 938 (W.D. Pa. 1992), 

aff’d 977 F.2d 568 (3d Cir. 1992) .................................................................................................................9

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Martin v. Hartford Life and Acc. Ins. Co., 

No. 09-cv-6617 (CJS), 2011 WL 893221 (W.D.N.Y. March 16, 2011).................................................4

McCauley v. First Unum Life Ins. Co., 

551 F.3d 126 (2d Cir. 2008).........................................................................................................................8

Metro. Life Ins. Co. v. Glenn, 

554 U.S. 105 (2008).......................................................................................................................................7

Miller v. United Welfare Fund, 

72 F.3d 1066 (2d Cir. 1995).........................................................................................................................3

Mitchell v. Eastman Kodak Co.,

113 F.3d 433 (3d Cir. 1997).........................................................................................................................2

Muller v. First Unum Life Ins. Co., 

341 F.3d 119 (2d Cir. 2003).........................................................................................................................3

Murray v. IBEW Local Union No. 98 Pension Plan,

2011 WL 1883189 (E.D. Pa. May 17, 2011)..............................................................................................3

O'Sullivan v. Metropolitan Life Ins. Co.,

114 F.Supp.2d 303 (D.N.J. 2000)........................................................................................................... 2, 3

Richard v. Fleet Fin. Group Inc. LTD Employee Benefits Plan, 

367 Fed. Appx. 230 (2d Cir. 2010) ........................................................................................................ 3, 8

Salute v. Aetna Life Ins Co., 

No. 04 CV 2035 (TCP)(MLO), 2005 WL 1962254 (E.D.N.Y. Aug. 9, 2005) ................................ 5, 7

San Filippo v. Bongiovanni,

743 F. Supp. 327 (D.N.J. 1990), 

rev’d on other grounds, 961 F.2d 1125 (3d Cir. 1992)....................................................................................4

Schoch v. First Fidelity Bancorporation, 

912 F.2d 654 (3d Cir.1990) ..........................................................................................................................9

Sivalingam v. Unum Provident Corp.,

735 F. Supp. 2d 189 (E.D. Pa. 2010)..........................................................................................................3

Stout v. Bethlehem Steel Corp.

957 F. Supp. 673 (E.D.Pa.1997)..................................................................................................................3

Teeter v. Supplemental Pension Plan of Consolidated Rail Corp.,

705 F. Supp. 1089 (E.D.Pa.1989)................................................................................................................3

Walker v. Spiller, 

1998 WL 306540 (E.D.Pa. June 9, 1998)...................................................................................................4

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Williams v. Borough of West Chester, 

891 F.2d 458 (3d Cir. 1989).........................................................................................................................9

STATUTES

Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et seq. (“ERISA”)......................1

ERISA § 502(a)(1)(B) ........................................................................................................................................5

RULES

Fed. R. Civ. P. 56 ...............................................................................................................................................9

Local Rule 56.1(a) ....................................................................................................................................... 9, 10

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PRELIMINARY STATEMENT

This reply memorandum of law is respectfully submitted in further support of Defendant, 

Hartford Life & Accident Insurance Company‟s (“Hartford”) motion pursuant to Rule 56(e), FED.

R. CIV, for an Order striking certain portions of Kevin T. Kutyla‟s, Esq.‟s Affidavit (“Kutyla 

Affidavit”) – specifically, Paragraphs 12-19 and Exhibits “A-C,” “G-Z,” and “AA-AJ” attached 

thereto – that were submitted in support of Wright‟s motion for summary judgment. 

This action involves Wright‟s claim for long-term disability (“LTD”) benefits under the 

Group Long Term Disability Plan for the employees of JPMorgan Chase Bank (the “Plan”), which 

is an employee welfare benefit plan governed by the Employee Retirement Income Security Act of 

1974, 29 U.S.C. §1001, et seq. (“ERISA”). As a preliminary matter, Wright concedes in his opposition 

that the majority of the records annexed to the Kutyla Affidavit are outside the administrative record

and, as such, are inadmissible as a matter of law. Furthermore, Wright essentially admits that he failed to 

properly authenticate each and every Exhibit annexed to the Kutyla Affidavit and accordingly, these 

materials are inadmissible as a matter of law for this reason as well. 

The only extra-record submission that Wright argues should be considered by the Court is the 

Affidavit of his treating internist, Dr. David Garrison, which was submitted for the first time during this 

litigation. Although Wright argues that Dr. Garrison‟s Affidavit should be considered by the Court in 

order to “clarify” a discussion he had with independent medical record peer review consultant Dr. Eric 

Kerstman, Dr. Kerstman‟s report includes a discussion of Dr. Garrison‟s conclusory medical opinion 

concerning Wright‟s alleged disability, which Wright does not even assert was mischaracterized. Thus, no 

“clarification” of Dr. Garrison‟s opinion is necessary. Furthermore, Wright offers no legal authority to 

support his argument that the Court can consider the extra-record medical opinions contained in 18 of 

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the 20 paragraphs of Dr. Garrison‟s Affidavit, which do not in any way reference his conversation with 

Dr. Kerstman. 

Wright also improperly requests leave of Court to file a proposed Amended Rule 56.1 

Statement of Material Facts because each statement of material fact in his initial Rule 56.1 Statement

relied on inadmissible evidence. This request is improper and untimely. If the court grants this 

request Hartford will be put to significant cost and expense, which is unnecessary because Wright 

should have referenced proper, admissible evidence in his first submission, but failed to do so. 

For these reasons, and as discussed more fully below, this Court should grant Hartford‟s 

motion to strike Paragraphs 12-19 and Exhibits “A-C,” “G-Z,” and “AA-AJ” to the Kutyla 

Affidavit; strike Wright‟s initial Rule 56.1 Statement because it solely relies on inadmissible evidence; 

and deny Wright‟s request for leave to file an Amended Rule 56.1 Statement with prejudice. 

ARGUMENT

POINT I

THIS COURT SHOULD STRIKE ALL EXHIBITS TO THE 

KUTYLA AFFIDAVIT BECAUSE THEY ARE NOT PART 

OF THE ADMINISTRATIVE RECORD

Wright concedes that the appropriate standard of review in this case is the deferential 

arbitrary and capricious standard of review. (Wright‟s Memorandum of Law in Opposition to 

Hartford Motion for Summary Judgment dated January 27, 2012, Doc. No. 54 (“Plaintiff‟s SJ 

Opp.”) at p. 2). It is well settled that when performing its review pursuant to this standard, the 

Court must not consider any evidence outside of the “administrative record,” which consists solely 

of those documents before the claims administrator at the time it rendered its final benefit 

determination. See O'Sullivan v. Metropolitan Life Ins. Co., 114 F.Supp.2d 303, 309 (D.N.J. 2000); 

Johnson v. UMWA Health & Retirement Funds, 125 Fed. Appx. 400, 405 (3d Cir. 2005); Mitchell v. 

Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997); Murray v. IBEW Local Union No. 98 Pension Plan, 

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2011 WL 1883189, 6 (E.D. Pa. May 17, 2011); Sivalingam v. Unum Provident Corp., 735 F. Supp. 2d 

189, 194 (E.D. Pa. 2010); Abnathya v. Hoffman-LaRoche, Inc., 2 F.3d 40 (3d Cir. 1993); Stout v. Bethlehem 

Steel Corp. 957 F. Supp. 673, 691 (E.D.Pa.1997); Teeter v. Supplemental Pension Plan of Consolidated Rail 

Corp., 705 F. Supp. 1089, 1095 (E.D.Pa.1989); Richard v. Fleet Fin. Group Inc. LTD Employee Benefits 

Plan, 367 Fed. Appx. 230, 233 (2d Cir. 2010); Hobson v. Metropolitan Life Ins. Co., 574 F.3d 75, 89 (2d 

Cir. 2009); Muller v. First Unum Life Ins. Co., 341 F.3d 119, 125 (2d Cir. 2003); Miller v. United Welfare 

Fund, 72 F.3d 1066, 1071 (2d Cir. 1995).

A. Wright’s Extra-Record Submissions Must Be Stricken As Improper and 

Unauthenticated

Wright admits that several of the Exhibits annexed to the Kutyla Affidavit are improper 

extra-record submissions that must not be considered by this Court. (See Affidavit of Kevin Kutyla

in Opposition to Hartford‟s Motion to Strike “Kutyla Opp.” ¶¶ 7, 8). Wright‟s explanation that he 

“placed very little reliance on these subsequent records in [his] brief in support of summary 

judgment” does not change the fact that these documents were improperly placed before the court

and that Wright relies on them, at least to some extent, in his summary judgment motion. (Id.). 

Based on this admission alone, these exhibits should be stricken. Johnson v. UMWA Health & 

Retirement Funds, 125 Fed. Appx. 400, 405 (3d Cir. 2005); O’Sullivan, 114 F.Supp.2d at 309.

Wright also generally argues that many of the Exhibits annexed to the Kutyla Affidavit are

documents that also exist in the administrative record submitted by Hartford in support of its 

motion for summary judgment. (Kutyla Opp.¶¶ 4-6; see also Hartford‟s Administrative Record 

annexed to the Declaration of Juan Mendez (“Mendez Declaration”) dated November 1, 2011 as 

Exhibits “A, B and C”). While this may be true, Wright admits that sifting through the voluminous 

Exhibits annexed to the Kutyla Affidavit to determine which of these materials also exists in the 

administrative record would be unnecessarily burdensome to the Court, especially since Hartford 

has already submitted a complete copy of the authenticated and admissible administrative record 

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with its Motion for Summary Judgment, which Wright has never challenged as being incomplete. 

(Kutyla Opp. ¶¶ 4, 10). 

Furthermore, while some of the Exhibits to the Kutyla Affidavit may also be part of 

administrative record, they are still inadmissible in the form he proffers them because none of these 

documents has been properly authenticated. See Walker v. Spiller, 1998 WL 306540, *5 (E.D.Pa. June 

9, 1998) citing Clark v. Clabaugh, 20 F.3d 1290, 1294 (3d Cir. 1994) ; Martin v. Hartford Life and Acc. Ins. 

Co., No. 09-cv-6617 (CJS), 2011 WL 893221, *8 (W.D.N.Y. March 16, 2011) (striking plaintiff‟s 

attorney‟s unauthenticated exhibits attached to his affidavit).1 Paragraphs 12 through 19 of the 

Kutyla Affidavit were admittedly made without personal knowledge of the facts and thus, these 

statements and the references to the authenticated exhibits referenced in these paragraph should be 

stricken along with the exhibits themselves. See Johnson v. Guhl, 91 F.Supp.2d 754, 765 (D.N.J. 2000); 

John Deere Indus. Equipment Co. v. Tomasella , 1990 WL 223521, *2 (D.N.J. Dec. 18, 1990); San Filippo v. 

Bongiovanni, 743 F. Supp. 327, 332 (D.N.J. 1990), rev’d on other grounds, 961 F.2d 1125 (3d Cir. 1992).

B. Dr. Garrison’s Affidavit Constitutes Improper Extra-Record Testimony and Must Be 

Stricken

Wright argues that the Court should review his treating internist, Dr. David Garrison‟s, 

Affidavit since it purportedly does not contain new extra-record evidence. (Wright‟s Brief in 

Response to Defendant‟s Motion to Strike Plaintiff‟s Attorney‟s Affidavit and Exhibits, dated 

January 27, 2010, Doc. No. 53 (“Plaintiff‟s Opp.”) at p.3). Specifically, Wright contends that Dr.

Garrison‟s Affidavit has been submitted to “clarify” the substance of a conversation between 

himself and independent medical record peer review physician Dr. Eric Kerstman regarding 

Wright‟s functional capacity, which Dr. Garrison claims was misrepresented in Dr. Kerstman‟s 

 

1 Wright‟s argument that he can authenticate two of the exhibits, letters that were sent to Attorney 

Kutyla‟s office, is unavailing. (Kutyla‟s Opp. ¶5 (ii) (iii)). Regardless of Attorney Kutyla‟s assertions 

as to what he is able to authenticate, he did not, in fact, authenticate these documents at any time 

during this litigation.

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report. (Plaintiff‟s Opp.” p. 3). A review of Dr. Garrison‟s Affidavit, however, demonstrates that Dr. 

Garrison is not seeking to clarify this conversation and that Wright is using this purported excuse 

for an improper submission as a pretext to introduce Dr. Garrison‟s extra-record medical opinions, 

which is not permitted in this ERISA § 502(a)(1)(B) action. See Das v. UNUM Life Ins. Co. of America,

222 Fed.Appx. 126, 133 (3d Cir. 2007); see also Salute v. Aetna Life Ins Co., No. 04 CV 2035 

(TCP)(MLO), 2005 WL 1962254, *6 (E.D.N.Y. Aug. 9, 2005); Bergquist v. Aetna U.S. Healthcare, 289 

F. Supp. 2d 400, 411 (S.D.N.Y. 2003).

Wright cites to Baker v. The Hartford Life Ins. Co, No. 08–cv–6382, 2010 WL 2179150 (D.N.J. 

May 28, 2010), an inapposite, unpublished decision, to support his argument that Dr. Garrison‟s 

Affidavit should be considered by the Court. (Plaintiff‟s Opp. p. 3). In Baker, the plaintiff submitted 

an affidavit from his treating physician clarifying an opinion that he provided during a conversation 

with an independent medical record peer review physician, which he claimed was not included in the 

peer review report and thus, not considered by the claim administrator. The Court held that the 

plaintiff was only entitled to submit evidence concerning what was or was not said during the 

specific conversation at issue. Baker, 2010 WL 2179150, *7, n.6. In his Affidavit, Dr. Garrison states 

that if Hartford, or the peer review physicians, had asked him about Wright‟s functional capacity, he 

would have responded that Wright was unable to work in any capacity due to the side-effects of his 

medications. (Exhibit “AG,” ¶ 18) This opinion by Dr. Garrison is already well-documented in the 

administrative record and therefore, adds no clarification to his dialogue with Dr. Kerstman. Dr. 

Garrison did not provide any “clarification” of what was said during his conversation with Dr. 

Kerstman. The administrative record reflects that, Dr. Kerstman acknowledged Dr. Garrison‟s

opinion that Wright was not capable of working in any capacity and that he deferred to the pain 

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management physician concerning specific restrictions and limitations.2(221)3. This is consistent 

with the following statements in Dr. Garrison‟s Affidavit: “I told the person on the phone that while 

I had received a DVD I had not reviewed the same. I told the person that while Mr. Wright is 

capable of doing yard work for an hour or two, his chronic pain and the side effects of his 

medication prevent him from being gainfully employed.” (Dr. Garrison‟s Affidavit annexed to 

Kutyla‟s Affidavit as “Exhibit „AG,‟” ¶¶ 10). Accordingly, the two sentences in Dr. Garrison‟s

Affidavit referencing his conversation with Dr. Kerstman only serve to reiterate and confirm, but 

not “clarify,” Dr. Kerstman‟s description of that conversation in his report. Certainly, Dr. 

Garrison‟s Affidavit does not contradict or add relevant material information not already included in 

the report about this conversation, as was the case in Baker. This court should not countenance

Wright‟s transparent attempt to accrete the administrative record with Dr. Garrison‟s Affidavit 

based on this pretext.

Similarly, Dr. Garrison‟s statement that Dr. Choi inaccurately reported that he had called Dr. 

Garrison, but that Dr. Garrison did not respond (Exhibit “AG,” ¶¶ 9), is also an improper extrarecord statement that does not serve to “clarify” the basis for Dr. Choi‟s report or his opinions 

 

2 Although Wright does not specify exactly what information Dr. Kerstman purportedly

misrepresented, any argument by Wright that Dr. Kerstman did not consider Dr. Garrison‟s 

conclusory opinion that Wright‟s functional capacity was detrimentally affected by the side-effects of 

his prescription medications is belied by the administrative record. For the sake of brevity, Hartford

refers the Court to Point II (B) of Hartford‟s Memorandum of Law in Opposition to Wright‟s 

Motion for Summary Judgment (“Hartford‟s Opp.”), for a discussion of the law and facts on this 

point, which demonstrate that while Hartford considered Wright‟s and Dr. Garrison‟s assertion that 

he was disabled by the side-effects of his medication, the administrative record is devoid of any 

evidence showing that his functional capacity was detrimentally affected in the manner he claims, 

and those arguments are incorporated herein by reference. (Hartford‟s Opp. pp. 6-8).

3 All references to numbers “00001” through “000039” are to the Bates Stamped pages annexed as 

Exhibit “A” of the Declaration of Juan M. Mendez dated November 1, 2011 (the “Mendez Dec.”). 

All references to numbers “000040” to “000993” are to the Bates Stamped pages annexed as Exhibit 

“B” to the Mendez Dec. All references to numbers “000994” to “001112” are to the Bates Stamped 

pages annexed as Exhibit “C” to the Mendez Dec. All references to the “Complaint” are to the 

Complaint filed February 2, 2011 and annexed as Exhibit “E” to the Declaration of Daniel M. Meier 

dated November 28, 2011. 

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concerning Wright‟s functional abilities. In fact, Dr. Choi‟s inability to reach Dr. Garrison was not a 

basis for his opinion. Notably, Dr. Garrison does not dispute the fact that he never actually spoke 

to Dr. Choi, so there is nothing of material consequence for him to “clarify.”

Beyond the two paragraphs concerning his discussions (or lack thereof) with Drs. Kerstman

and Choi, which as established above are inadmissible, Dr. Garrison‟s Affidavit contains 18 other 

paragraphs offering additional extra-record medical opinions and other information that are not 

related to his conversations with the peer review physicians. (Exhibit “AG,” ¶¶ 1-8, 11-20). 

Manifestly, these paragraphs include improper extra-record medical evidence that was not submitted 

to Hartford during its claim review process. Notably, during its review of Wright‟s claim, Hartford 

asked Dr. Garrison to submit his opinions concerning Wright‟s functional abilities but he refused to 

do so. (110, 392). Wright is not permitted to now add Dr. Garrison‟s belated opinion for 

consideration long after the administrative record was closed. See Das v. UNUM Life Ins. Co. of 

America, 222 Fed.Appx. 126, 133 (3d Cir. 2007); see also Salute v. Aetna Life Ins Co., No. 04 CV 2035 

(TCP)(MLO), 2005 WL 1962254, *6 (E.D.N.Y. Aug. 9, 2005); Bergquist v. Aetna U.S. Healthcare, 289 

F. Supp. 2d 400, 411 (S.D.N.Y. 2003).

Wright also argues, without any legal support, that the Court should consider Dr. Garrison‟s 

Affidavit because Hartford submitted the Mendez Declaration in support of its motion for summary 

judgment. (Plaintiff‟s Opp. at 2). This argument is a total non sequitur. Unlike Wright‟s improper 

efforts to expand the administrative record with materials addressing to the substance of his claimed 

disability, Hartford submitted the Mendez Declaration to demonstrate the significant affirmative 

steps it has taken to reduce any potential influence of its structural conflict of interest on its claim 

decision-making. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008). Numerous courts have

acknowledged that they may consider evidence outside of the administrative record to determine 

whether a dual role insurance company has taken active steps to reduce the potential for conflict of 

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interest to affect its decision-making. See Kosiba v. Merck & Co., No. 98-3571, 2011 WL 843927, *20 

(D.N.J., March 7, 2011); see also McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 137 (2d Cir. 2008); 

Fortune v. Group Long Term Disability Plan For Employees Of Keyspan Corp., 391 Fed. Appx. 74, 78 (2d 

Cir. 2010). In contrast, Wright has not alleged that Dr. Garrison‟s Affidavit is relevant to the 

question of Hartford‟s alleged conflict of interest. Instead, Wright seeks to utilize Dr. Garrison‟s 

affidavit to challenge Hartford‟s substantive determination with medical opinions that were not 

submitted to Hartford during its claim review process, which he may not do. See Richard, 367 Fed 

Appx. at 233.

Lastly Wright argues that Dr. Garrison‟s Affidavit should not be stricken because it 

authenticates the records his office submitted to Hartford. (Plaintiff‟s Opp. pp. 3-4). This argument 

is contradicted by Dr. Garrison‟s Affidavit, itself, which does not purport to authenticate his medical 

records. Moreover, even if Dr. Garrison‟s Affidavit had authenticated his records, that still would 

not provide any legal basis providing him carte blanche ability to submit any extra-record documents

and/or opinions for the Court‟s consideration on the parties‟ competing dispositive motions.

POINT II

WRIGHT’S AMENDED RULE 56.1 STATEMENT IS 

PROCEDURALLY IMPROPER AND SHOULD BE 

STRIKEN

As referenced above, Wright‟s counsel admits that he improperly submitted inadmissible, 

extra-record evidence in support of Wright‟s motion for summary judgment, which he improperly 

cited to support each and every statement of material fact in Wright‟s Rule 56.1 Statement of 

Material Facts (“Rule 56.1 Statement”). (Kutyla‟s Opp.¶¶ 7, 8). Since Wright acknowledges that his 

reliance on inadmissible evidence should not be considered by the Court, he now asks leave of 

Court to file an amended Rule 56.1 Statement in his opposition. (Kutyla‟s Opp.¶¶ 9, 10). Hartford 

objects to this request as it is improper and would put Hartford at a significant disadvantage. 

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Under Local Rule 56.1 of the Local Civil and Criminal Rules of the United States District 

Court for the District of New Jersey (“L.R.”), Wright was required to submit a Rule 56.1 statement, 

along with his motion for summary judgment, supported by admissible evidence. See L.R. 56.1(a); see 

also Capital Funding v. Chase Manhattan Bank USA, 191 Fed. Appx. 92, 96 (3d Cir. 2006) “([O]nly 

evidence admissible at trial may be considered in ruling on a motion for summary judgement”); J.F. 

Feeser. Inc. v. Serv-A-Porton, 909 F.2d 1524, 1542 (3d Cir. 1990) (quoting Williams v. Borough of West 

Chester, 891 F.2d 458 (3d Cir. 1989) (finding that Fed. R. Civ. P. 56 requires the production, at the 

summary judgment stage, of evidence “„as would be admissible at trial‟ . . .and thus „reduc[ible] to 

admissible evidence.‟”); Marsh v. Crucible Inc. 1975 Salaried Retirement Plan, 783 F. Supp. 938, 944 

(W.D. Pa. 1992), aff’d 977 F.2d 568 (3d Cir. 1992) (citing Schoch v. First Fidelity Bancorporation, 912 F.2d 

654, 662 (3d Cir.1990) (finding that only admissible evidence may be considered by the trial court in 

ruling on a motion for summary judgment). But by his own admission, Wright failed to act in 

accordance with this most basic evidentiary principle and instead, relied on inadmissible evidence.

(Kutyla‟s Opp.¶¶ 7-10). Moreover, while Hartford pointed out these deficiencies in its Motion to 

Strike that was filed on January 13, 2012, Wright inexplicably waited until January 27, 2012, which 

was after Hartford filed its Counter-Statement to Wright‟s Rule 56.1 Statement to request the abovereferenced relief. Hartford should not bear the burden of having to prepare a new CounterStatement to Wright‟s proposed Amended Rule 56.1 statement due to Wright‟s failure to cite to 

admissible evidence in support of his motion in the first place.

Furthermore, from a procedural standpoint, Wright did not properly file a motion for leave 

of Court to file his proposed Amended Rule 56.1 Statement. Instead, he merely sought that leave in 

his attorney‟s Affidavit submitted in opposition to Hartford‟s Motion to Strike. (Kutyla‟s Opp.¶¶9-

10). In doing so, Wright has not properly alerted the Court to this request, and the Court will not 

review, and/or grant or deny, this request until after the parties‟ respective motions for summary 

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judgment are filed on February 21, 2012. This effectively strips Hartford of its right to respond to 

Wright‟s Amended Rule 56.1 Statement, which leaves Hartford at a significant disadvantage. 

Furthermore, Wright had the opportunity to redress his mistake by filing a supplemental statement 

of disputed material facts along with his Brief in Opposition to Hartford‟s Motion for Summary 

Judgment to substantiate the factual basis for his opposition. See L.R. 56.1(a) Instead, Wright chose 

to ignore this opportunity and then attempted to file an improper amended Rule 56.1 Statement

without leave of court. Accordingly, Hartford requests that the Court deny Wright‟s improper and 

belated request for leave to amend his Rule 56.1 Statement and Strike his initial Rule 56.1 Statement 

because it relies solely on inadmissible evidence. 

CONCLUSION

For the foregoing reasons, this Court should strike Exhibits “A-C,” “G-Z,” and “AA-AJ” to

the Kutyla Affidavit in support of Wright‟s motion for summary judgment along with paragraphs 12 

through 19 of the Affidavit; strike Wright‟s initial Rule 56.1 Statement because it solely relies on 

inadmissible evidence; and deny Wright‟s request for leave to file an Amended Rule 56.1 Statement 

with prejudice

Dated: New York, New York

February 21, 2012

Respectfully Submitted,

s/ Daniel M. Meier 

Michael H. Bernstein, pro hac vice

Daniel M. Meier (DM- 041942006)

SEDGWICK LLP

125 Broad Street, 39th Floor

New York, New York 10004-2400

Telephone: (212) 422-0202

[SDMA File No 02489-000119]

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NY/846372v1

SEDGWICK LLP

125 Broad Street, 39th Floor

New York, New York 10004-2400

Telephone: (212) 422-0202

Facsimile: (212) 422-0925

Attorneys for Defendants

Hartford Life and Accident Insurance Company s/h/a

The Hartford Benefit Management Services

and GDB Claims and Services Operations

UNITED STATES DISTRICT COURT

DISTRICT COURT OF NEW JERSEY

----------------------------------------------------------------x

JAMES WRIGHT,

Plaintiff,

-againstTHE HARTFORD BENEFIT 

MANAGEMENT SERVICES; GDB CLAIMS 

AND SERVICES OPERATIONS; ABC 1-10 

(that being the names of the corporate entities, 

companies, partnership or individuals intended), 

Defendants.

Civil No.: 2:11-cv-00602 

Hon. Stanley R. Chesler, U.S.D.J.

Hon. Michael A. Shipp, U.S.M.J.

PROOF OF MAILING

----------------------------------------------------------------x

1. I, Daniel M. Meier, am an associate with the law firm of Sedgwick LLP, attorneys for 

HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY i/s/h/a THE HARTFORD 

BENEFIT MANAGEMENT SERVICES and GDB CLAIMS AND SERVICES OPERATIONS.

2. I hereby certify that I mailed a sealed package with postage pre-paid, via regular mail 

addressed to:

Kevin T. Kutyla, Esq.

83 Spring Street

Newton, NJ 07860

(973) 940-8970

Attorney for Plaintiff

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2

NY/846372v1

3. This package contains a copy of defendant‟s Reply Memorandum of Law in Furtehr 

Support of its Motion to Strike, which was filed with the court via ECF.

I certify that the foregoing statements made by me are true. I am aware that if any of the 

foregoing statements made by me are willfully false, I am subject to punishment.

Dated: February 21, 2012

s/ Daniel M. Meier

Daniel M. Meier, Esq. (DM- 041942006)

Case 2:11-cv-00602-SRC -MAS Document 62 Filed 02/21/12 Page 17 of 17 PageID: 1956