[Doc. No. 42]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

CATHERINE VERME-GIBBONEY,

 Plaintiff,

v.

THE HARTFORD INSURANCE 

COMPANY, et al.,

 Defendants.

Civil No. 11-3796 (RMB/JS)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on plaintiff’s 

“Motion to Compel Discovery.” [Doc. No. 42]. The Court received 

defendant’s response [Doc. No. 44], plaintiff’s reply [Doc. No. 

48], and held oral argument. The issue to be addressed generally 

concerns the scope of discovery plaintiff is entitled to in this 

ERISA case. For the reasons to be discussed, plaintiff’s motion 

is DENIED.

Background

Defendant insured plaintiff through an employee welfare 

benefit plan, which provides long term disability (“LTD”) 

benefits to participants. In July 2008, plaintiff was placed on 

disability by her treating physician and sought LTD coverage. 

Defendant initially accepted plaintiff’s claims and provided LTD 

benefits but on January 14, 2010, defendant terminated the 

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benefits. See Amended Compl. ¶¶ 7, 8 [Doc. No. 11]. Plaintiff 

filed a claim with defendant to have her LTD benefits reinstated 

but defendant denied the request. Plaintiff appealed the 

decision. After the appeal was denied plaintiff filed this 

action in the Superior Court of New Jersey seeking damages and 

reinstatement of her LTD benefits. Defendant subsequently 

removed the case to this Court.

This is plaintiff’s second Motion to Compel Discovery. On 

October 24, 2012 [Doc. No. 33] the Court denied plaintiff’s 

first motion which asked the Court to Order defendant to respond 

to her interrogatories, documents requests and deposition 

notice. In its Order the Court found that since plaintiff’s 

plan granted discretionary authority to the administrator to 

determine eligibility benefits, defendant’s decision to 

terminate plaintiff’s LTD benefits “must be reviewed under an 

arbitrary and capricious standard.” Order at 4. The Court, 

therefore, denied plaintiff’s request that defendant respond to 

her “de novo discovery” directed to the merits of defendant’s 

decision to terminate plaintiff’s benefits. The Court also 

ruled:

[P]laintiff may conduct limited discovery to determine 

the scope of defendant’s conflict and the extent to 

which the conflict may have affected the 

administrator’s determination about plan 

eligibility.... However, discovery should only be 

permitted to fill gaps in the administrative record. 

If the administrative record adequately explains the 

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procedures used to prevent or mitigate a conflicts 

problem, limited discovery is not permissible.

Order at 6.

Following up on the Court’s October 24, 2012 Order, 

plaintiff served defendant with interrogatories and a corporate 

designee deposition notice. Defendant served objections and 

responses to the interrogatories, and objected to the deposition 

notice.1 Plaintiff argues her discovery is designed to “fill in 

the gaps of the administrative record to determine whether or 

not the potential conflict of the arbitrator, and/or what and 

how said individual insulated and/or isolated themselves.” 

March 3, 2013 Letter Brief (“LB”) at 2. Defendant argues it 

provided plaintiff with all the relevant information it was 

required to produce. Defendant’s Brief states:

In brief, Hartford explained that the initial 

termination was made in the claims department while 

the final determination was made in a wholly separate 

appeals unit. Personnel in the claims and appeals 

units do not have access to or knowledge of financial 

information regarding any policyholder, nor is the 

information regarding the profitability or any other 

financial information regarding a policyholder 

provided to, or accessible by, those people. Rather, 

the people deciding initial claims or making 

determination on appeal have been effectively “walledoff” from Hartford’s finance department by ensuring 

that their compensation is not determined by reference 

to their record in approving or denying claims. 

Additionally, claims personnel are separate from and 

not involved with the persons responsible for 

1 Defendant’s objections and responses to interrogatories are attached as 

Exhibit C to defendant’s Declaration. [Doc. No. 44-2 at 14-41]. Defendant’s 

objection to plaintiff’s deposition notice is attached as Exhibit B. [Id. at 

8-11].

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Hartford’s financial operations or decisions and they 

do not have any role or responsibility for management, 

reporting, or other functions regarding Hartford’s 

finances. They are not required to interact in any way 

with employees involved in underwriting or other 

financial concerns when making benefit decisions.

Response Brief at 4-5. According to defendant, it does not have 

to provide any further information or produce a witness for 

deposition because the additional requested information is not 

needed to fill in any gaps in the administrative record. Id. at 

3. In response plaintiff argues:

Pursuant to relevant case law, plaintiff is 

and has always been entitled to inquire into 

how, if at all defendant was able to elect 

“a firewall” to prevent the inherent 

conflict associated with making a 

determination as to whether or not one would 

be entitled to ongoing benefits from one’s 

own insurance company, despite representing 

and working for the company in question. 

April 15, 2013 LB at l. Plaintiff also argues she is “entitled 

to a determination as to whether or not defendant created a 

firewall sufficient to avoid prejudice and any inherent 

conflict.” Id. at 2.

Discussion

There are several problems with plaintiff’s motion. First, 

although plaintiff asks the Court to Order defendant to serve 

supplemental discovery answers, she did not specifically 

identify the relevant information she requested that was not 

produced. Further, plaintiff asks the court to order 

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defendant’s designee to appear for what is presumably a Fed. R. 

Civ. P. 30(b)(6) deposition, but she did not attach the notice 

to her moving papers. The Court has a copy of defendant’s 

objection (Response at Exhibit B), but not a copy of plaintiff’s 

notice.

The most significant substantive problem with plaintiff’s 

motion is that it does not appreciate the proper scope of 

discovery in the present context. It is, of course, well 

established that the Federal Rules of Civil Procedure allow 

broad and liberal discovery. See Pacitti v. Macy’s, 193 F.3d 

766, 777 (3d Cir. 1999). However, this does not apply in the 

ERISA context. In a situation such as this where the arbitrary 

and capricious standard of review applies, the review is limited 

to the administrative record and as such discovery is not 

ordinarily permitted. Mitchell v. Eastman Kodak Co., 113 F.3d 

433, 437-38 (3d Cir. 1997); Irgon v. Lincoln Nat. Life Ins. Co., 

C.A. No. 13-4731 (FLW), 2013 WL 6054809, at *3 (D.N.J. Nov. 15, 

2013)(“Under the arbitrary and capricious standard of review, 

courts must limit their review of the plan administrator’s 

denial of benefits to only the evidence that was before the 

administrator when the decision was made.”).

The Court previously held that even if discovery is

permitted regarding a structural conflict of interest, the 

discovery is “limited.” Order at 6. In fact, if the 

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administrative record adequately explains the procedure used to 

prevent or mitigate a conflicts problem no discovery is 

permissible. Id. (citations omitted); Shvartsman v. Long Term 

Disability Income Plan for Choices Eligible Employees of Johnson 

& Johnson, C.A. No. 11-03643 (JAP), 2012 WL 2118126, at *10

(D.N.J. June 11, 2012). As noted in the case law, discovery in 

the ERISA context “is limited by the statute’s goal of a speedy, 

inexpensive, and efficient resolution of claims.” Irgon at *4. 

Courts have wide discretion and “considerable latitude” in 

deciding whether discovery outside the scope of the 

administrative record is appropriate. Irgon at *4. This 

discretion includes a ruling denying any discovery beyond the 

administrative record. Id. at *7. See also Stevens v. 

Santander Holdings USA, Inc., C.A. No. 11-7473 (PGS), 2013 WL 

322628, at *9. (D.N.J. Jan. 28, 2013)(denying discovery in ERISA 

action because plaintiff’s broad allegations lacked a factual 

basis that did not raise a reasonable suspicion of misconduct by 

defendants or the administrator); Reed v. Citigroup, Inc., C.A. 

No. 12-2934 (JAP)(DEA), 2013 WL 2761132, at *2 (D.N.J. July 16, 

2013)(denying discovery in ERISA action because plaintiff did 

not present evidence that a structural conflict or procedural 

irregularity existed). Plaintiff cites to Metro Life Ins. Co. v. 

Glenn, 554 U.S. 105 (2008), for the proposition that she is 

entitled to broad discovery. Plaintiff misreads Glenn. As this 

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this Court wrote in its October 24, 2012 Order, “Glenn does not 

specifically address discovery issues.” Order at 5. In addition,

as discussed herein, numerous courts support the view that 

discovery in this context is non-existent or limited. Plaintiff 

has not cited to any contrary authority.

To be sure, discovery in this context is not completely out 

of bounds. Discovery outside the administrative record may be 

permitted if it is directed to an administrator’s structural 

conflict of interest or procedural irregularities that occurred 

during the reviewing process. Irgon at *3. The structural 

inquiry focuses on the financial incentives created by the way 

the plan is organized. Post v. Hartford Ins. Co., 501 F.3d 154, 

162 (3d Cir. 2007). The structural analysis does not ask about 

the administrator’s behavior. Id. at 164. The Third Circuit has 

held “that a structural conflict arises when the Administrator 

has a non-trivial financial incentive to act against the 

interests of the beneficiaries.” Id. at 162. Thus, a conflict 

of interest may exist if an employer funds and evaluates claims. 

A conflict may also exist if an employer pays an independent 

insurance company to both evaluate claims and pay plan benefits. 

Irgon at *5. (citations omitted). A conflict does not exist if 

an employer funds a benefits plan but an independent third-party 

is paid to administer the plan. Also, no conflict exists if an 

employer establishes a plan and creates an internal benefits 

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committee vested with the discretion to interpret the plan and 

administer benefits. Id. As to the inquiry into procedural 

irregularities, it “focuses on how the administrator treated the 

particular claimant.” Id. (citation omitted). Procedural

irregularities occur where the administrator has given the court 

reason to doubt its fiduciary neutrality. Id.; see also Post, 

501 F.3d at 165 (“In considering procedural factors, the focus 

is whether, in [the] claimant’s case, the administrator has 

given the court reason to doubt its fiduciary neutrality.”)

Plaintiff has not cited to any procedural irregularity in 

the record. Instead, plaintiff focuses on defendant’s alleged 

structural conflict of interest. The Court’s October 24, 2012 

Order granted plaintiff leave to conduct limited discovery to 

address the “inherent structural conflict of interest in 

defendant’s group benefit plan because defendant determines 

eligibility and pays claims under the plan.” Order at 7. 

(citation omitted). However, despite the fact that plaintiff 

has a copy of the administrative record and it received 

defendant’s interrogatory answers, plaintiff does not point to 

any “gaps” in the administrative record. Although plaintiff 

says she wants to fill in the gaps, she does not cite to any 

deficiency that she wants to address.2

 In fact, the Court reads 

2 The Court will not address plaintiff’s arguments raised for the first time 

at oral argument that were not mentioned in her moving papers. Defendant did 

not have an opportunity to address the arguments.

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plaintiff’s briefs as acknowledging she does not presently know 

of any “gaps” because she wants to determine “whether” the 

decision maker was insulated or isolated. March 3, 2013 LB at 

2. In addition, plaintiff does not question whether defendant’s 

firewall existed but just whether it was “sufficient.” April 

15, 2013 LB at 2.

Simply because plaintiff raises the specter of a conflict 

of interest does not give her the right to conduct “carte 

blanche” conflict of interest discovery beyond the 

administrative record. Irgon at *5. Before plaintiff can conduct 

the discovery she requests she “must establish a reasonable

suspicion of misconduct.” Id. Stated another way, plaintiff “must 

allege a good faith basis of conflict of interest to warrant 

discovery.” Id. Plaintiff has not satisfied her burden. 

Plaintiff did not cite to any portion of the administrative 

record to support her request for discovery. She also did not 

cite to any evidence of an “irregularity” to show there is a 

good faith belief that misconduct occurred.

In its response to interrogatory 3 (Doc. No. 44, Exhibit C, 

pp. 19-21) defendant provided a detailed explanation regarding 

the steps it took to insulate claims decisions from the 

company’s financial matters, and the steps it took to prevent or 

mitigate a conflicts problem. Defendant explained that 

plaintiff’s initial termination was made by a Claims Specialist 

9
and approved by a Team Leader, both of whom were part of the 

claims department. Defendant further explained that plaintiff’s

appeal was denied by the separate appeals unit. In addition,

defendant explained how it “walled-off” claims examiners and 

appeals specialists, and that its claims and appeals decisions 

are insulated from the financial and underwriting departments. 

Further, defendant cited to the portion of the administrative 

record (HLI 70-74, 28-35) where it identified the factors it 

relied upon to uphold the termination of plaintiff’s claim for 

benefits. Defendant also identified in the record the health 

care professionals it consulted with regarding plaintiff. These 

professionals whose C.V.’s were produced included Sergio Loaiza, 

M.D., Board Certified in Neurology with the added qualification 

in Clinical Neurophysiology by the American Board of Psychiatry 

and Neurology, and Thomas Klein, M.D., Board Certified in 

Otolaryngology. Id. at 29-30, 35-39. In response to plaintiff’s 

interrogatories defendant also explained that there is no

“incentive program” regarding the denial of disability claims. 

Id. at 27-28. And, that the decision makers are paid “fixed 

salaries and performance bonuses that are wholly unrelated to 

the number of claims paid or claims denied.” Id. at 28. This 

detailed response does not evidence a lack of thoroughness on 

the part of the administrator that justifies additional 

discovery. Irgon at *5.

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It appears to the Court that plaintiff served generic 

interrogatories asking for information such as how many claims 

were presented for appeal, how many were denied and accepted, 

how was the appeal decision made, was the decision maker 

influenced by outside factors, was there an incentive program, 

was the decision maker reprimanded, and the person’s training. 

Presumably plaintiff’s deposition notice covered the same

topics. Unfortunately for plaintiff, however, she has not 

demonstrated that any additional discovery is appropriate or 

necessary. Defendant represents it produced the administrative 

record to plaintiff on December 20, 2011. Plaintiff has 

certainly had enough time to identify irregularities in the 

record that might justify additional discovery. Plaintiff has 

not done so and, therefore, plaintiff’s motion will be denied. 

As discussed, discovery in the ERISA context is limited. In 

effect, if the Court granted plaintiff’s motion then any time 

the arbitrary and capricious standard of review applied a 

claimant denied disability benefits would be entitled to serve 

detailed interrogatories and take a corporate designee 

deposition. This position is not supported in the case law and 

is inconsistent with ERISA’s goals. Before plaintiff is 

permitted to embark on detailed discovery to pursue an alleged 

structural conflict she must identify a good faith basis to 

11
believe an irregularity has occurred. Since plaintiff has not 

done this her motion is denied.

Conclusion

Accordingly, for all the foregoing reasons, it is hereby 

ORDERED this 16th day of December, 2013, that plaintiff’s Motion 

to Compel Discovery is DENIED.

s/Joel Schneider 

JOEL SCHNEIDER

United States Magistrate Judge

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