NY/756884v2

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 MEMORANDUM 

OF LAW IN SUPPORT OF ITS 

MOTION TO STRIKE PORTIONS 

OF THE PLAINTIFF’S 

ATTORNEY’S AFFIDAVIT AND 

SEVERAL OF THE EXHIBITS 

ANNEXED THERETO

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

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TABLE OF CONTENTS

Page(s)

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

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

POINT I

THIS COURT SHOULD STRIKE ALL EXHIBITS TO THE KUTYLA 

AFFIDAVIT THAT ARE NOT PART OF THE ADMINISTRATIVE RECORD....................2

POINT II

THE COURT SHOULD STRIKE ALL PORTIONS OF WRIGHT‟S 

ATTORNEY AFFIDAVIT AND THE EXHIBITS ANNEXED THERETO 

THAT ARE UNAUTHENTICATED AND NOT BASED ON HIS PERSONAL 

KNOWLEDGE .........................................................................................................................................5

CONCLUSION.................................................................................................................................................7

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TABLE OF AUTHORITIES

Page(s)

CASES

Abnathya v. Hoffman-LaRoche, Inc., 

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

Clark v. Clabaugh,

20 F.3d 1290 (3d Cir. 1994).........................................................................................................................6

Conkright v. Frommert, 

130 S.Ct. 1640 (2010)........................................................................................................................... 2, 4, 5

Filippo v. Bongiovanni,

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

cert. denied 506 U.S. 908, 113 S.Ct. 305, 121 L.Ed.2d 228 (1992) ............................................................7

Firestone Tire and Rubber Co. v. Bruch, 

489 U.S. 101 (1989).......................................................................................................................................2

Grimes v. Prudential Financial, Inc., 

No. 09-419 (FLW), 2010 WL 2667424 (D.N.J. June 29, 2010)......................................................... 4, 5

Hobson v. Metropolitan Life Ins. Co., 

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

John Deere Indus. Equipment Co. v. Tomasella , 

1990 WL 223521 (D.N.J. Dec. 18, 1990)...................................................................................................6

Johnson v. Guhl, 

91 F.Supp.2d 754 (D.N.J. 2000)..................................................................................................................6

Johnson v. UMWA Health & Retirement Funds, 

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

Jones v. Waters,

563 F.Supp. 817 (E.D. Pa. 1983) ................................................................................................................6

Marciniak v. Prudential Financial Ins. Co. of America,

184 Fed. Appx. 266 (3d Cir. 2006) .................................................................................................... 3, 4, 5

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

No. 09-cv-6617 (CJS), 2011 WL 893221 (W.D.N.Y. March 16, 2011).................................................6

Metropolitan Life Ins. Co. v. Glenn, 

554 U.S. 105, 128 S.Ct. 2343 (2008) ...........................................................................................................2

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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).........................................................................................................................3

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, 6 (E.D.Pa. May 17, 2011).................................................................................. 2, 4, 5

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

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

Palomba v. Barish,

626 F.Supp. 722 (E.D.Pa.1985)...................................................................................................................6

Post v. Hartford Ins. Co.,

501 F.3d 154, 168 (3d Cir. 2007), overruled on other grounds, 574 F.3d 230 (3d Cir. 2009)................ 2, 4

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

No. 09-2284-cv, 2010 WL 625003 (2d Cir. Feb. 24, 2010).....................................................................3

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)...................................................................................................6

STATUTES

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

RULES

Rule 56(c)(4), FED. R. CIV. P., ..........................................................................................................................6

Rule 56(e), FED. R. CIV. ....................................................................................................................................1

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PRELIMINARY STATEMENT

This memorandum of law is respectfully submitted in 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”). At the close of discovery, the parties filed their respective 

motions for summary judgment, which are currently pending before this Court. In support of his 

motion for summary judgment, however, Wright submitted the Kutyla Affidavit in support of his 

motion for summary judgment, which annexes several exhibits that were not part of the 

administrative record pertaining to Hartford‟s administration of Wright‟s claim for benefits. Under 

well-settled and controlling authority in this Circuit, this Court may not consider these exhibits when 

reviewing Hartford‟s adverse benefit determination because they are evidence outside of the 

administrative record. It is therefore respectfully requested that the Court strike the portions of the 

Kutyla Affidavit that contain this inadmissible extra-record evidence and not consider it in 

connection with the pending dispositive motions

In addition, with the exception of the pleadings in this matter, each and every exhibit 

annexed to the Kutyla Affidavit, including those outside the administrative record referenced above, 

has not been properly authenticated. Indeed, Kutyla does not have the requisite personal knowledge 

to authenticate these exhibits nor to make the conclusory assertions in his affidavit referring to 

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them. Accordingly, these exhibits and Kutyla‟s corresponding conclusory assertions referring to 

them, should also be stricken by this Court and not considered in connection with the parties‟ 

respective dispositive motions. 

ARGUMENT

POINT I

THIS COURT SHOULD STRIKE ALL EXHIBITS TO THE 

KUTYLA AFFIDAVIT THAT ARE NOT PART OF THE 

ADMINISTRATIVE RECORD

Wright was a participant in the Chase LTD Plan, an employee welfare benefit plan that is 

governed by ERISA. Hartford issued a group policy of insurance to fund benefits under the Plan 

and administered all claims for benefits (including Wright‟s) pursuant to a full grant of discretionary 

authority. (5, 19, 24).1 When a claim administrator is given such discretionary authority to determine 

a claimant‟s eligibility for benefits, the court must view its claim determinations with a strong 

measure of deference and may only reverse the administrator‟s actions if the court finds them to be 

arbitrary and capricious. See Conkright v. Frommert, 130 S.Ct. 1640, 1646 (2010); Metropolitan Life Ins. 

Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 2347-48 (2008); Firestone Tire and Rubber Co. v. Bruch, 489 

U.S. 101, 115 (1989). 

It is well-settled that in reviewing Hartford‟s adverse benefit determination, the Court is 

limited to the facts known to the claims administrator at the time its final decision was rendered. See

Murray v. IBEW Local Union No. 98 Pension Plan, 2011 WL 1883189, 6 (E.D.Pa. May 17, 2011) citing 

Post v. Hartford Ins. Co., 501 F.3d 154, 168 (3d Cir. 2007), overruled on other grounds, 574 F.3d 230 (3d 

Cir. 2009). “Consequently, when, as here, a plaintiff alleges that a plan administrator... abused its 

 

1 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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discretion in deciding to terminate benefits, [the Court] generally limit[s] [its] review to the 

administrative record, that is, to the „evidence that was before the administrator when [it] made the 

decision being reviewed.‟” See Sivalingam v. Unum Provident Corp., 735 F.Supp.2d 189, 194 (E.D.Pa. 

2010). quoting Mitchell v. Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997); see also Marciniak v. 

Prudential Financial Ins. Co. of America, 184 Fed. Appx. 266, 268 (3d Cir. 2006) (“holding that “the 

record for [an] arbitrary and capricious review of [an] ERISA benefits denial is the evidence that was 

before the plan administrator at the time of the benefit denial, which cannot be supplemented 

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

2005) (holding that the administrative record “is the record made before the plan administrator 

which cannot be supplemented during litigation.”); see also Abnathya v. Hoffman-LaRoche, Inc., 2 F.3d 

40 (3d Cir. 1993); O'Sullivan v. Metropolitan Life Ins. Co., 114 F.Supp.2d 303, 309 (D.N.J. 2000)

(holding that there is no applicable authority that would support looking beyond the administrative 

record when deferentially reviewing a plan administrator's factual determination that a claimant is 

ineligible for benefits); 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, No. 09-2284-cv, 2010 WL 625003, *2 (2d Cir. Feb. 

24, 2010); Hobson v. Metropolitan Life Ins. Co., 573 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).

In support of his motion for summary judgment, Wright submitted the Kutyla Affidavit, to 

which he annexed several items of inadmissible extra-record evidence. Specifically, these exhibits 

include medical records from Wright‟s treating physicians that were not provided to Hartford during 

its administrative review of Wright‟s claim for continuing LTD benefits (See the Kutyla Affidavit 

(“Kutyla Aff.”) at Exhibits “G-Z,” “AA-AE”). Although several of the medical records included in 

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these exhibits were submitted to Hartford during its administrative review, many were not and thus, 

Hartford was never afforded the opportunity to consider this information prior to rendering its final 

determination regarding Wright‟s claim for continuing LTD benefits. Accordingly, the Court should 

strike Exhibits “G-Z” and “AA-AE” to the Kutyla Affidavit in their entirety, and only consider 

Wright‟s medical records that were actually before Hartford at the time it rendered its final adverse 

claim determination. All of those materials are already included in the administrative record

previously filed with the court (See Mendez Dec., Exhibits A-D, filed on November 1, 2011). See 

Conkright, 130 S.Ct. at 1646; see also Marciniak, 184 Fed. Appx. at 268 (3d Cir. 2006); Grimes v. 

Prudential Financial, Inc., No. 09-419 (FLW), 2010 WL 2667424, *1 (D.N.J. June 29, 2010); Murray, 

2011 WL 1883189, *6 citing Post, 501 F.3d at 168, overruled on other grounds, 574 F.3d 230.

Also annexed to, Kutyla‟s Affidavit is a functional capacity and work ability assessment 

evaluation from Kinematics Consultants, Inc., which was conducted approximately six months after

Hartford‟s final adverse determination letter and thus, was not before Hartford at the time it made 

its final claim determination. (See Kutyla Aff. at Exhibit “AI”). Kutyla‟s Affidavit also annexed an 

affidavit of Wright‟s treating physician Dr. David Garrison dated August 26, 2011, which was first 

submitted to Hartford during litigation, and well after the administrative record was closed. (See the 

Affidavit of Dr. Garrison annexed to the Kutyla Aff. at Exhibit “AG”).2 Again, Dr. Garrison‟s 

Affidavit is not a part of the administrative record concerning Wright‟s claim for continuing LTD 

benefits. Therefore, Dr. Garrison‟s Affidavit, as well as the functional capacity and work ability 

assessment evaluation from Kinematics Consultants, Inc., are extra-record submissions that cannot 

be considered by the Court in connection with the parties‟ respective dispositive motions because as 

 

2 Notably, immediately upon being served with Dr. Garrison‟s Affidavit dated August 26, 2011, 

Hartford sent plaintiff‟s counsel a letter dated September 1, 2011, in which it rejected this Affidavit 

and explained that it is plainly not part of the administrative record and thus, not evidence that the 

reviewing court may consider in connection with this matter. (See Defendant‟s September 1, 2011 

letter annexed as Exhibit “A” to the Declaration of Daniel M. Meier in support of Defendant‟s 

Motion to Strike). 

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referenced above, this Court is not free to accept and review such extra-record material, which 

Hartford never had the chance to consider before it rendered its final claim determination. See 

Conkright, supra; see also Marciniak, supra; Grimes, supra; Murray, supra.

Consequently, this Court should strike Exhibits “G-Z,” “AA-AE,” “AG” and “AI” to the 

Kutyla Affidavit because they are not part of the administrative record to be reviewed in connection 

with the parties‟ pending dispositive motions. 

POINT II

THE COURT SHOULD STRIKE ALL PORTIONS OF THE 

KUTYLA AFFIDAVIT AND THE EXHIBITS ANNEXED

THERETO THAT ARE UNAUTHENTICATED AND NOT 

BASED ON KUTYLA’S PERSONAL KNOWLEDGE

In his Motion for Summary Judgment, Wright‟s attorney annexed and referred to several 

exhibits, including “A-C,” “G-Z” and “AA-AJ,”3 which were never properly authenticated and thus, 

must be stricken as inadmissible evidence. Furthermore, although Wright‟s attorney attached these

exhibits to his Affidavit (the Kutyla Affidavit) in support of Wright‟s Motion for Summary 

Judgment indicating that he had personal knowledge, he did not indicate how he, as a Wright‟s 

attorney, has personal knowledge regarding the authenticity of these documents and thus, he has no 

basis upon which to authenticate the documents annexed to his Affidavit as Exhibits “A-C”, “G-Z”

and “AA-AJ.” Furthermore, the paragraphs of Kutyla‟s4 Affidavit numbered 12 through 19, which 

make reference to these inadmissible exhibits, must also be stricken from the record as Attorney 

Kutyla has provided absolutely no information showing that he possessed the requisite personal 

knowledge to make such statements. 

 

3 Notably, the only Exhibits annexed to his declaration that Hartford does not challenge include 

Exhibit “D,” which is Levin‟s Summons and Complaint; Exhibit “E,” which is the defendant‟s 

Answer; and Exhibit “F,” which is a Stipulation of Dismissal with prejudice. 

4 Wright failed to file a full copy of the Kutyla Affidavit. Indeed, page two of the Kutyla Affidavit,

which includes a portion of paragraph 3 and paragraphs 4 through 8, was never filed with the Court 

or served on defendant. (Doc. No. 30-1).

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Pursuant to Rule 56(c)(4), FED. R. CIV. P., “[a]n affidavit or declaration used to support or 

oppose a motion must be made on personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent to testify on the matters stated.” 

Moreover, exhibits attached thereto must be properly authenticated as required by Rule 901(a) of the 

Federal Rules of Evidence, which states that “[t]he requirement of authentication or identification as 

a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the 

matter in question is what its proponent claims.” The Court must therefore strike any 

unauthenticated exhibits and statements contained in an attorney‟s affidavit in support of a motion 

for summary judgment where the attorney has no personal knowledge of the assertions and exhibits 

contained therein. 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); Palomba v. Barish, 626 F.Supp. 722, 725 n. 11 

(E.D.Pa.1985); Jones v. Waters, 563 F.Supp. 817, 819 (E.D. Pa. 1983); 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).

Furthermore, case law in this District overwhelmingly supports Hartford‟s motion to strike

Paragraphs 12 through 19 of the Kutyla Affidavit and the exhibits annexed thereto because he has 

no personal knowledge of the conclusory statements he makes or as to the authenticity of the 

documents he annexed in the exhibits referenced in those paragraphs and referenced above. See

Johnson v. Guhl, 91 F.Supp.2d 754, 765 (D.N.J. 2000)(holding that only statements in an attorney‟s 

affidavit based on personal knowledge shall be considered by the Court); see also John Deere Indus. 

Equipment Co. v. Tomasella , 1990 WL 223521, *2 (D.N.J. Dec. 18, 1990). (holding that the affidavit of 

an attorney who lacks firsthand knowledge of the events does not satisfy the requirements of Fed R. 

Civ P. 56(e)); San Filippo v. Bongiovanni, 743 F.Supp. 327, 332 (D.N.J. 1990) (striking inadmissible 

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elements of an attorney‟s affidavit made without personal knowledge), rev’d on other grounds, 961 F.2d 

1125 (3d Cir. 1992), cert. denied 506 U.S. 908, 113 S.Ct. 305, 121 L.Ed.2d 228 (1992).

Here, the Kutyla Affidavit improperly annexed a copy of: (1) the Hartford Plan documents, 

(Kutyla Aff. at Exhibit “A” and “AJ”); (2) Hartford‟s initial adverse determination letter dated 

August 4, 2009, (Kutyla Aff. at Exhibit “B”); (3) Hartford‟s final adverse determination letter dated 

February 25, 2009, (Kutyla Aff. at Exhibit “C”); (4) medical records from Wright‟s treating 

physicians, (See Kutyla Aff. at Exhibits “G-Z” and “AA-AE”); (5) a functional capacity and work 

ability assessment evaluation from Kinematics Consultants, Inc., (Kutyla Aff. at Exhibit “AI”); (6) 

surveillance footage depicting Wright performing strenuous physical labor, (Kutyla Aff. at Exhibit

“AI”); (7) a job description for a Chase project manager, (Kutyla Aff. at Exhibit “AF”); and (8) an 

Affidavit from Wright‟s treating physician Dr. David Garrison dated August 26, 2011 that was first

submitted during litigation. (Kutyla Aff. at Exhibit “AG”). Plaintiff‟s counsel fails to state that these 

documents are true and correct copies of what he identifies them to be. In addition, Wright‟s 

counsel also fails to explain the basis for the Court to consider this documentation as admissible 

evidence. Indeed, Wright‟s counsel has no personal knowledge of the accuracy or completeness of 

these documents. Therefore, Wright‟s counsel has no basis to authenticate those portions of these 

documents that he relies on in his Memorandum of Law. Accordingly, this Court should strike

Exhibits “A-C,” “G-Z,” and AA-AJ” to the Kutyla Affidavit as well as paragraphs 12 through 19 

which improperly reference these inadmissible exhibits. 

CONCLUSION

Accordingly, this Court should strike Exhibits “G-Z,” “AA-AE,” “AG” and “AI” of the 

Kutyla Affidavit in support of Wright‟s motion for summary judgment because they are improper, 

extra-record submissions that this Court may not consider in this action seeking LTD benefits under 

ERISA. This Court should also strike Exhibits “A-C,” “G-Z,” and “AA-AJ” to the Kutyla Affidavit 

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as well as paragraphs 12 through 19, on the grounds that this evidence is not properly authenticated 

or based on Wright‟s counsel‟s personal knowledge. 

Dated: New York, New York

January 13, 2012

Respectfully Submitted,

s/Daniel M. Meier 

Michael H. Bernstein, pro hac vice

Daniel M. Meier

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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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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3. This package contains a copy of defendant‟s Memorandum of Law in Support of its 

Motion to Stirke, 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: January 13, 2012

s/ Daniel M. Meier

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

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