has “misinterpreted or misapplied applicable law.” Doe v. Hartford Life Ace. Ins. Co., 237 F.R.D.
545, 548 (D.N.J. 2006).
III. DISCUSSION

Defendant argues that “portions of the Discovery Order denying [Defendant] discovery are
erroneous and contrary to the law” and that the “Court should set aside [those] portions of the
Order[] and permit discovery on the issues identified by the Third Circuit.” (Def.’s Moving Br. 17,
ECF No. 142-1.)

The crux of Defendant's argument is that implicit in the Third Circuit’s remand is the need
for additional discovery. Defendant argues that the existing paper record was insufficient for the
Third Circuit to decide the two issues on remand: (1) whether Plaintiff's medical conditions
prevent him from performing substantial and material duties of his specialty and (2) Plaintiff's
claim for Residual Disability. Therefore, according to Defendant, the Discovery Order is
clearly erroneous.

On whether Plaintiff's medical conditions prevent him from performing substantial and
material duties of his specialty, the Third Circuit found “a dispute of material fact.” McCann, 907
F.3d at 150-51. Finding that “[t]he record demonstrates some level of consensus on the question,”
the Third Circuit found it prudent to “remand for the District Court to consider.” /d. at 151.
Nowhere, however, does the Opinion mention a need for additional discovery. Indeed, as Judge
Bongiovanni stated in her Order, “[t]he existence of a disputed material fact, does not. in and of
itself, necessitate additional discovery.” (Disc. Order 5.) Similarly, a remand on a fact issue does
not necessitate additional discovery. See, e.g.. Viera v. Life Ins. Co. of N. Am., 871 F. Supp. 2d
379, 384 (E.D. Pa. 2012) (finding administrative record adequate to proceed to trial on remand

where requested “discovery does nothing to facilitate the Courts de novo review"). Because the

u


not decide—a request for remand, so Court will not address Defendant's alternative argument
raised first on appeal.’
IV. CONCLUSION

The Court finds Defendant fails to meet its burden to show Judge Bongiovanni’s Order
was clearly erroneous or contrary to law. The Court, accordingly, denies Defendant's Appeal.

(ECF No. 142.) An Order consistent with this Memorandum Opinion will be entered.

MICHAEL A. Sure f
UNITED STATES DISTRICT JUDGE

+ Moreover, the facts of this case differ from those cited by Defendant where courts remanded to
the plan administrator. Here, the Third Circuit did not order remand to the Plan administrator. See
Buffonge v. Prudential Ins. Co. of Am., 426 F.3d 20, 22 (Ist Cir. 2005) (finding the process
employed by the defendant in determining benefits was so “materially tainted” that “the taint was
sufficiently prejudicial, so as to render the process arbitrary .. . [and require] remand to the claims
administrator for a new review”); Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1290 (10th
Cir. 2002) (“[We remand] to the district court with instructions that it [remand] the matter to the
[defendant's] claims administrator for further findings of fact pursuant to the plan’s standard for
‘any occupation’ disability.”). Here, the Court is reviewing the termination of Plaintiff's benefits
under a de novo standard, not an arbitrary and capricious one. WeCann, 907 F.3d at 147; of Dunn
v. Reed Grp., Inc., No. 08-1632, 2009 WL 2848662, at *8-9 (D.N.J. Sept. 2, 2009) (ordering
remand to the Claims and Plan Administrators for findings on a plaintiff's residual physical
capacity and the type of sedentary jobs the plaintiff is capable of working because, without these
findings, the court could not conduct an arbitrary and capricious review of the decision).


Judge Bongiovanni also found discovery on Plaintiffs Residual Disability claim
unnecessary because, “[a]s noted by the Third Circuit, Defendant considered residual disability in
both its initial determination of Plaintiffs request for disability benefits and in response to
Plaintiff's appeal.” (/d. at 6 (citing McCann, 907 F.3d at 152).) Moreover. “[as] noted by the Third
Circuit, Plaintiff's claim for Residual Disability is based on a medical condition Defendant has
already considered and approved for Total Disability.” (/d. (citing McCann, 907 F.3d at 152).)
Having addressed each of the two issues on remand, Judge Bongiovanni denied further discovery.
IL. LEGAL STANDARD

A district court will only reverse a magistrate judge’s decision on a non-dispositive issue
if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A): Fed. R. Civ. P. 72(a); L.
Civ. R. 72.1(c)(1)(A). “This deferential standard is ‘especially appropriate where the Magistrate
Judge has managed [a] case from the outset and developed a thorough knowledge of the
proceedings.’” Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 214 (D.N.J.
1997) (citation omitted). Furthermore, “particularly broad deference [is] given to a magistrate
judge's discovery rulings.” Farmers & Merchants Nat'l Bank v. San Clemente Fin. Grp. Sec., Inc.,
174 F.R.D. 572, 585 (D.N.J. 1997) (citation omitted).

The appealing party has the burden “to demonstrate that the magistrate judge's decision
was clearly erroneous or contrary to law.” McDonough v, Horizon Blue Cross Blue Shield of N.J.,
Inc., No. 09-571, 2013 WL 322595, at *2 (D.N.J. Jan. 22, 2013). A finding is “clearly erroneous”
when, “although there is evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been committed.” Dome Petroleum Ltd. v.
Emp'rs Mut. Liab. Ins. Co., 131 F.R.D. 63. 65 (D.N.J. 1990) (quoting United States v. Gypsum

Co.. 333 U.S. 364, 395 (1948)). A decision is considered contrary to the law if the magistrate judge


Third Circuit did not expressly provide guidance on the need for additional discovery, the Court
finds that the Order denying discovery on this issue is neither clearly erroneous nor contrary to
the law.

On Plaintiff's Residual Disability claim, the Third Circuit only held that the exhaustion
doctrine did not preclude Plaintiff's claim and remanded the issue to the Court. McCann, 907 F.3d
at 152. Again, the Third Circuit did not mention the need for additional discovery on the issue. See
id. at 151-52. Judge Bongiovanni accordingly concluded that because Defendant had already
considered Residual Disability on two other occasions and because Plaintiff's claim for Residual
Disability would be based on a medical condition already considered by Defendant, additional
discovery on this issue was not required. The Court similarly finds that, absent explicit direction
from the Third Circuit on additional discovery, the Order is not clearly erroneous on this issue.*

Defendant further argues that two Orders, dated October | 1, 2013 and September 12, 2014,
constitute the law of the case—“that the litigation record is not limited to the [A]dministrative[]
Record”—and that the Order is either clearly erroneous or contrary to the law. (See Def.’s Moving

Br. 21-23.) The Court is not persuaded by this argument. First, Defendant has not provided

> Moreover, from the exhibits to Defendant's Moving Brief. it appears that Defendant is seeking
to open discovery well beyond the existing record—having served Plaintiff with twenty-four
interrogatories and eighty-nine requests for production following remand. These requests include
discovery related to Plaintiff's eligibility for benefits beyond September 20, 2010. (See Def.’s
Moving Br. 25-26.)

“When reviewing de novo a decision of the [P]lan administrator,” the Court has the discretion “to
expand the record as needed or proceed [based on] the previously developed record.” Viera, 871
F. Supp. 2d at 384, “Thus, . . . the Court must determine whether. in its discretion. the record is
sufficiently developed to make an independent determination.” /d. At this juncture, the Court is
unable to assess how each of Defendant’s numerous discovery requests could be appropriately
tailored to inform the Court on the narrow issues before it. Moreover, it is Plaintiff's burden to
show he is entitled to benefits or that Defendant's benefit determination was incorrect—not
Defendant's. Plaintiff has asserted that “the 2500-page administrative record is well-developed
[and that] there is no need to supplement it further.” (P1.°s Opp‘n Br. 13.)


NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KEVIN M. McCANN, M.D.,

Plaintiff,
Civil Action No. 11-3241 (MAS) (TJB)
v.
MEMORANDUM OPINION
UNUM PROVIDENT and HARTFORD LIFE
AND ACCIDENT INSURANCE COMPANY,

Defendants.

SHIPP, District Judge

This matter comes before the Court upon Defendant Provident Life and Accident Insurance
Company’s' (“Defendant”) Motion Appealing the Order of Magistrate Judge Bongiovanni Dated
July 29, 2019, pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Local
Civil Rule 72.1(c). (ECF No. 142.) Plaintiff Kevin M. McCann, M.D. (“Plaintiff”) opposed (ECF
No. 144), and Defendant replied (ECF No. 145). The Court has carefully considered the parties’
submissions and decides the matter without oral argument pursuant to Local Civil Rule 78.1. For
the reasons set forth below, the Court denies Defendant’s Appeal.

I. BACKGROUND
Plaintiff initiated this action in 2011 pursuant to the Employee Retirement Income Security

Act of 1974, 29 U.S.C. §§ 1001 ef seq., alleging that he was incorrectly denied disability benefit

' Plaintiff incorrectly named Life and Accident Insurance Company as “Unum Provident.” (See
Def.’s Moving Br. 1, ECF No. 142-1.)


authority for how the law of the case doctrine has been applied to discovery issues. See Bacon v.
Taylor, 392 F. App’x 30, 34 n.3 (3d Cir. 2010) (“[Plaintiff] has not provided authority for applying
[the law of the case] doctrine to discovery issues, nor have we found any such authority.) Second,
Defendant does not argue that the law of the case mandates the requested discovery, only that it
permits the submission of evidence beyond the record. Finally, the Court finds nonetheless that
the law of the case (if it is indeed the law of the case) could not be so sweeping that it limits Judge
Bongiovanni’s discretion to manage discovery. For these reasons, the Court finds that the
Discovery Order is neither clearly erroneous nor contrary to the law of the case.

Defendant also argues that the Order is clearly erroneous because discovery is needed to
avoid surprise and unfairness to Defendant and to prepare for trial. (Def..s Moving Br. 23-24;
Def.’s Reply Br. 6-8.) Plaintiff asserts that “the 2500-page administrative record is well-developed
[and that] there is no need to supplement it further.” (PI."s Opp’n Br. 13.) It appears, then, that
Plaintiff will rely upon the Administrative Record and that there should be no surprise as to what
evidence Plaintiff will present at trial.

Defendant alternatively argues that “[w]here. as here, the Record lacks sufficient evidence,
‘the proper remedy is to remand the case to the Plan administrator to conduct a more thorough

inquiry.” (Def.’s Moving Br. at 26-27.) Here. Judge Bongiovanni was not faced with—and did


payments under a policy issued by Defendant (the “Policy”). In March 2016, having considered
“the [parties’] papers and lengthy administrative record,” the Honorable Mary L. Cooper, U.S.D.J.,
found “the facts and evidence in the record did not support a finding that [Plaintiff] was eligible
for Total Disability benefits [under the Policy]” and granted summary judgment for Defendant.
McCann v. Unum Provident, et al., No. 11-3241, 2016 WL 1161261, at *2 (D.N.J. Mar. 23, 2016).
Plaintiff appealed. (ECF No. 114.)

A. The Third Circuit’s Opinion

The Third Circuit vacated Judge Cooper’s decision. McCann v. Unum Provident, et al.,
907 F.3d 130 (3d Cir. 2018). Reviewing the record de novo, the Third Circuit found:
(1) “[Plaintiff's] occupation [is that of] an interventional radiologist for purposes of assessing the
merits of his claim,” id at 149; and (2) “[Plaintiff's] ‘substantial and material duties’ are
established and include both his ability to perform interventional procedures and his ability to do
so on nights and weekends,” id. at 150.

The Third Circuit remanded to the Court for further proceedings on: (1) “whether
[Plaintiff's] medical conditions prevented him from being able to perform the substantial and
material duties of his specialty, either by rendering him physically unable or by so limiting his
availability that he was precluded from continuing his practice as an interventional radiologist,”
id, at 150-51; and (2) Plaintiffs claim for Residual Disability under the Policy, id. at 151-52.

B. Post-Remand Discovery

Following the Third Circuit’s decision, the parties immediately disputed the need for
additional discovery—and what the scope of that discovery should be. On December 18, 2018, the
Honorable Tonianne J. Bongiovanni, U.S.M.J., held a telephone conference with the parties,

during which she determined that any additional discovery would be “limited” to the issues

vw


identified in the Third Circuit's Opinion. (ECF No. 126.) Thereafter, the parties served written
discovery requests and exchanged responses and objections to the requests. (See, e.g., Pl."s May 9,
2019 Suppl. Objs. and Resp. to Def.’s Interrog. Nos. 1-24, Ex. B to DiGiaimo Cert., ECF
No. 142-3); Pl.’s May 9, 2019 Suppl. Objs. and Resp. to Def."s RFP Nos. I-89, Ex. C to DiGiaimo
Cert., ECF No. 142-4).

On May 16, 2019, Judge Bongiovanni held a telephone conference and ordered briefing on
any outstanding issues between the parties. In a series of correspondence, the parties disputed the
scope of discovery post-remand. (£.g., Pl."s May 24, 2019 Corr. at *|—~72 Def.’s June 11, 2019
Corr. at *8-29; Pl.’s June 12, 2019 Corr. at *30-31: Def.’s June 14, 2019 Corr. at *32-34; PI.’s
June 17, 2019 Corr. at *35; Def.’s June 18, 2019 Corr. at *36-37. Ex. D to DiGiaimo Cert.. ECF
No. 142-5.)

Cc. The Discovery Order

On July 29. 2019, Judge Bongiovanni entered the Discovery Order that Defendant now
appeals. (Disc. Order, ECF No. 139.) Judge Bongiovanni found that no additional discovery was
needed on Plaintiff's Total Disability claim. (See id. at 4-5.) Specifically, Judge Bongiovanni
found that “[t]he existence of a disputed material fact [on whether Plaintiff could perform
substantial and material duties of his specialty]. does not, in and of itself, necessitate additional
discovery. Instead it simply means that a decision on the question in dispute must be made by the
factfinder.” (/d. at 5.) Judge Bongiovanni found the existing record enough to determine whether
Plaintiff could perform the substantial and material duties of an interventional radiologist and that

“[nJo additional discovery [was] needed.” (/d.)

? Page numbers preceded with an asterisk reference the page numbers at the top of the ECF filing.