KEVIN T. KUTYLA, ESQ. 

83 Spring Street

Newton, NJ 07860

(973) 940-8970 / (973) 940-8973 (fax)

Attorneys for Plaintiff

 UNITED STATES DISTRICT COURT

 DISTRICT OF NEW JERSEY

JAMES WRIGHT,

Plaintiff(s),

-againstHARTFORD FINANCIAL SERVICES 

GROUP; THE 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),

Defendant(s).

Civil Action No.: 2:11-cv-00602

Hon. Stanley R. Chesler,

 U.S.D.J.

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

________________________________________________________________

BRIEF IN RESPONSE TO DEFENDANT’S

MOTION TO STRIKE

PLAINTIFF’S ATTORNEY’S AFFIDAVIT AND EXHIBITS

_______________________________________________________________

On the Brief:

Kevin T. Kutyla, Esq.

83 Spring Street, Ste. 302B

Newton, NJ 07860

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TABLE OF CONTENTS

PAGE

LEGAL ARGUMENT............................................................................................................... 1

POINT I:

DR. GARRISON’S AFFIDAVIT SHOULD NOT BE

STRICKEN FROM PLAINTIFF’S SUMMARY

JUDGMENT MOTION............................................................................... 1

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TABLE OF AUTHORITIES

Baker v. Harford Life Ins. Co., et al.,

2010 U.S. Dist. LEXIS 52742............................................................................. 3

Metro Life Ins. Co. v. Glenn, 554 U.S. 105 (2008).............................. 2

Marciniak v. Prudential Fin. Ins. Co. of Am.,

184 Fed. Appx. 266 (3d Cir. Pa. 2006)................................................. 1, 2

Smathers v. Multi-Tool, Inc., 298 F.3d 191 (3d Cir. 2002).... 1

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1

POINT I

DR. GARRISON’S AFFIDAVIT SHOULD

NOT BE STRICKEN FROM PLAINTIFF’S SUMMARY

JUDGMENT MOTION

Defendant seeks to strike the Affidavit of David M. 

Garrison, M.D. attached to the affidavit of Kevin T. Kutyla by 

claiming that Dr. Garrison’s affidavit is evidence that was not 

before Hartford’s administrator at the time of his decision. 

Smathers v. Multi-Tool, Inc., 298 F.3d 191, 199-200 (3d Cir. 

2002); Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed. 

Appx. 266 (3d Cir. Pa. 2006) 

Plaintiff submitted an affidavit by Dr. Garrison in support 

of plaintiff’s Motion for Summary Judgment. Plaintiff submitted 

this affidavit to show a genuine issue of material of fact 

existed as what Dr. Garrison, plaintiff’s treating physician, 

told the Hartford and its hired expert, Dr. Kertsman during 

Hartford’s decision making process. This is evident by Dr. 

Garrison’s statement, “I have read the decision of Juan M. 

Mendez, the appeal Specialist for the Hartford Insurance Company 

and note that decision contains inaccurate and incomplete 

information.” 

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Plaintiff is not trying to submit any new evidence to this 

court, but rather is trying to shed light on the actual review 

process which Dr. Garrison claims has been mischaracterized by 

the Hartford, its employee, Juan Mendez and its hired expert, 

Dr. Kertsman. 

In Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed. 

Appx. 266 (3d Cir. Pa. 2006), the plaintiff argued that the 

District Court erred when it refused to consider other evidence 

outside the administrative record; specifically evidence of 

Marciniak’s surgeries in the year prior to the appeal. While 

the Court has made it clear that “the record for arbitrary and 

capricious review of ERISA benefits denial is the evidence that 

was before the plan administrator at the time of the benefit 

denial, which cannot be supplemental during litigation.” Id. at 

269. This court further a held that, “...it may consider evidence 

of potential biases and conflicts of interest that are not found 

in the administrator’s record.” Id. at 269.

In this way, Dr. Garrison’s affidavit is similar to the 

Statement of Juan Mendez which was proffered by the Hartford to 

mitigate the inherent conflict that exists because Hartford is 

both the administrator and decision maker in the subject Group 

Benefit Plan. Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 

105 (2008).

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Further, anything that was said to Hartford or its 

representatives, including Dr. Kertsman, would be considered a 

part of the administrative record and therefore, plaintiff 

should be able to submit evidence of what was or was not said 

during the conversation between Hartford or its representatives. 

In a case decided by this Court, Baker v. Hartford Life Ins. 

Co., et al., 2010 U.S. Dist. LEXIS 52742, the court denied 

Hartford’s Motion to Strike the sworn statement of the 

plaintiff, Baker’s treating physician. In denying Hartford’s 

motion to strike, Judge Wolfson stated, “In my view, Defendant 

[Hartford] mischaracterizes the purpose of Dr. Dashevsky’s sworn 

statement. Plaintiff is trying to shed light on the 

conversation between Dr. Nemunaitis [Hartford’s hired expert] 

and Dr. Dashevsky, which formed the basis of Dr. Nemumaitis’s 

report. Anything that was said to Dr. Nemunaitis during that 

conversation would be considered a part of the administrative 

record...” Id. at 21.

Another reason this Court should not strike the affidavit 

of Dr. Garrison is because it is also used to authenticate the 

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4

records that were submitted to Hartford during this summary 

judgment motion and also during the decision making process. 

Respectfully submitted,

/s/ Kevin T. Kutyla

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