wrote. “I now oversee Dr. McCann’s general medical care. Given documentation and general
recommendations of the cardiothoracic surgeon [Dr. Coselli], | therefore. agree and support Dr.
McCann‘s ongoing disability.” (DRPSMF { 69 (emphasis omitted); PRDRPSMF { 69 (emphasis
omitted).)

Beginning in the summer of 2009, Defendant reexamined Dr. McCann‘s total disability
status, McCann, 907 F.3d at 137. In the course of that review, Defendant's medical consultant
and cardiologist, Dr. Alfred Parisi, reviewed Dr. McCann’s medical information. (PSMF 4 69;
DRPSMF 469.) Dr. Parisi’s medical review included a conversation with Dr. Lombardi. (PSMF
§ 69; DRPSMF § 69.) Among other things, Defendant's 2009 reexamination relied upon Dr.
Coselli’s August 10, 2009 APS notes. McCann, 907 F.3d at 139. Dr. Parisi’s review ultimately
determined that Dr. McCann could perform certain work as a non-interventional radiologist with
limits on heavy lifting, nightshift and weekend hours, and a limit of no more than fifty hours of
work per week. (PSMF {if 71, 74; DRPSMF §f 71, 74.) A second in-house reviewer, Dr. Costas
Lambrew, concurred with Dr. Parisi’s conclusions. (PSMF §{ 72-74; DRPSMF {{ 72-74.) In the
course of its reexamination, “Provident noted its vocational consultant ‘concluded that the majority
of [Dr. McCann’s] practice was diagnostic radiology which involves sitting at a computer to read
films.” AfeCann, 907 F.3d at 139 (citations omitted). In a letter dated December 23, 2009,
Defendant terminated Dr. McCann’s individual disability claim. (PSMF 475; DRPSMF § 75.)

Dr. McCann filed an appeal of the denial of his disability benefits with Defendant. (PSMF
§ 79; DRPSMF § 79.) In connection with that appeal, Dr. McCann included a letter from his
cardiologist, Dr. Chandra Madala, who concluded that the aneurysm left Dr. McCann fully and
permanently disabled and emphasized the importance of him avoiding stress. (PSMF 4 81;

DRPSMF 4 81.) Dr. Madala relied on Dr, Coselli’s earlier opinions in reaching this conclusion.

uw


[pJolicy. This determination may be based on any information before the administrator initially,
as well as any supplemental evidence such as [an independent expert's] report.”)

Here, based on its review of the entire summary judgment record. including the
certification from counsel for Defendant Provident Life concerning potential supplemental
evidence needed to oppose Dr. McCann's motion, the Court finds that focused discovery is needed
in order for Defendant to address the instant motion. Accord with Viera v. Life Ins. Co. of N. Am.,
871 F. Supp. 2d 379, 384 (E.D. Pa. 2012) ("When reviewing de novo a decision of the plan
administrator, it is within the discretion of this Court to expand the record as needed or proceed
on the basis of the previously developed record.”).

Counsel avers that there are a number of issues and specific items of discovery needed in
order for Defendant to justify its opposition to the Motion for Partial Summary Judgment.
“Provident Life seeks the depositions of all of [P]laintiff's treating physicians, particularly but not
limited to Drs. Madala and Lombardi.” (DiGiaimo Certif. q 21(i), ECF No. 166-2.) Counsel
asserts that “both physicians relied upon carly reports of Dr. Coselli. without having in hand” all
of Dr. Coselli’s opinions, including the September 20, 2010 letter in which he appears to have
affirmatively rejected Dr. McCann's claim that he was disabled. (/d.) Relatedly, “Provident Life
seeks the deposition of Dr. Coselli to clarify and confirm his opinion regarding Dr. McCann‘s
restrictions and limitations as of September 20, 2010." (Jd.  21(j).) The Court agrees that
depositions of Drs, Madala, Lombardi, and Coselli, as well as paper discovery related to each of
their opinions, are necessary in order to allow Defendant to properly oppose the instant summary

judgment motions. Paper discovery shall include the September 20, 2010 correspondence from


component.” Jd. at 150. In its opinion, the Third Circuit concluded that a question remained as
to:

whether Dr. McCann’s medica! conditions prevented him from
being able to perform the substantial and material duties of his
specialty, cither by rendering him physically unable or by so
limiting his availability that he was precluded from continuing his
Practice as an interventional radiologist. On this question we find a
dispute of material fact, which we remand for the District Court to
consider.

dd, at 150-51. The Third Circuit further noted “some level of consensus on this question.” Jd. at
151. The Court of Appeals observed that several of Defendant's in-house reviewers such as Dr.
Parisi concluded that “if Dr. McCann is an interventional radiologist it is reasonable that he would
not be able to perform some of the interventional activities.” /d. (citations omitted). Nevertheless,
during Defendant's final examination of Dr. McCann’s claim, Dr. Sweeney found “*[t}here are no
limitations on function supported’ which ‘would prevent Dr. McCann from resuming on a full-
time basis his previous occupation as an interventional and diagnostic radiologist.” /d. (citations
omitted). In the cross-motion now before the Court, Dr. McCann moves for summary judgment
on the question of whether his medical conditions prevent him from performing the material and
substantial duties of an interventional radiologist?
Il. LEGAL STANDARD
The underlying purpose of summary judgment “is to avoid a trial *in cases where it is

unnecessary and would only cause delay and expense.” Ullrich v. U.S. Sec'y of Vererans Affairs,

3 Although the Third Circuit also remanded the case to this Court with instructions to consider the
question of Dr. McCann's residual disability, Dr. McCann has not moved for summary judgment
on that question. (PI.°s Moving Br. 2. ECF No. 153-2 (“If Dr. McCann prevails . . . and is
determined to be {tJotally [dJisabled within the meaning of the [P]olicy. the Court need not reach
the question of residual disability. Therefore, Dr. McCann moves for partial summary judgment
on the first issue only, and reserves the right, if necessary, to proceed with the second issue[.}”).)

7



(PRDRPSMF 4 81; DRPSMF 4 81.) During this appeal, Defendant again referred Dr. McCann's
file to one of its reviewers, this time to Dr. Paul W. Sweeney. (PSMF §[ 82; DRPSMF § 82.) In
the course of his review, Dr. Sweeney wrote Dr. Coselli and asked him to clarify his opinion
regarding Dr. McCann’s ascending aortic ancurysm and potential disability. (DRPSMF 4 82;
PRDRPSMF { 82.) Before he received a response from Dr. Coselli. in a report dated September
20, 2010, Dr. Sweeney concluded that Dr. McCann could perform both diagnostic and
interventional duties without restrictions and limitations. (DRPSMF {ff 82, 89; PRDRPSMF qt
82, 89.) Minutes after Dr. Sweeney's report was issued and after Provident issued its final
determination letter, Dr. Sweeney reccived a response from Dr. Coselli. (DRPSMF { 82;
PRDRPSMF { 82.) In that letter, Dr. Coselli apparently clarifies that he no longer supported
disability status for Dr, McCann as it related to his aorta. (DRPSMF ] 82; PRDRPSMF 4 82.)*
Dr. McCann filed the present action seeking review of Defendant's determination on his
disability claim. Ultimately, the Third Circuit determined that under the Policy, “Dr. McCann's
occupation [is} an interventional radiologist” for the purposes of assessing a Policy claim.
AfcCann, 907 F.3d at 149. Notwithstanding Defendant's final determination, “diagnostic

radiology is one component of an interventional radiologist’s specialty, but not the only

? Ina previous opinion, Magistrate Judge Bongiovanni struck Dr. Coselli’s September 20, 2010
correspondence and subsequent related communications as outside of the administrative record
before the Court. (Mem. Op. 7-9, ECF No. 70.) Judge Bongiovanni reasoned that “[a}lthough Dr.
Coselli’s letter was received only 45 minutes after the determination was made, the fact remains
that the determination was made without reference or reliance upon this later-received letter.” (/d.
at 7-8 (citing King v. Hartford Life & Accident Ins, Co., 414 F.3d 994, 999 (8th Cir. 2005) (“[A]
reviewing court must focus on the evidence available to the plan administrators at the time of their
decision and may not admit new evidence or consider post hoc rationales.”)).) In striking the
documents, however, Judge Bongiovanni noted that ~[w]hile this Court has stricken the
aforementioned documents from the administrative record. same are still part of the record of this
litigation and, as such, may be considered by the District Court if it so chooses.” (dd. at 9.)

6


Rule 56(d) are usually granted ‘as a matter of course[.]"” Jd. (quoting St. Surin v, V.L. Daily News,
Inc,, 21 F.3d 1309, 1314 (3d Cir. 1994). “If discovery is incomplete, a district court is rarely
justified in granting summary judgment, unless the discovery request pertains to facts that are not
material to the moving party’s entitlement to judgment as a matter of law.” Shelton v. Bledsoe,
775 F.3d 554, 569 (3d Cir. 2015).

Hl, DISCUSSION

The Court finds that the discovery request now before the Court pertains to facts that are
material to the moving party’s entitlement to judgment as a matter of law. Furthermore. the Court
finds that Defendant, as nonmovant, has identified “facts essential to justify its opposition” but
that are not presently available to it. Fed. R. Civ. P. 56(d). Accordingly, pursuant to Rule 56(d),
the Court will deny Plaintiffs Motion for Partial Summary Judgment without prejudice in order
to allow Defendant time to take discovery.

The parties agree, and the Third Circuit has already found, that in the present case, this
Court must perform a de novo review to determine whether Defendant was correct in denying Dr.
McCann's disability claim. AfcCann, 907 F.3d at 147 (citing Viera v. Life Ins. Co. of N. Am., 642
F.3d 407, 413 (3d Cir. 2011) (“if we exercise ce novo review, the role of the court is to determine
whether the administrator . . . made a correct decision.” (alteration in original))). “Our review is
not colored by a presumption of correctness and we determine whether the insured was entitled to
benefits under the plain terms of their policy.” fd. “{A] district court exercising de novo review
over an ERISA determination between beneficiary claimants is not limited to the evidence before
the [fJund’s [aJdministrator.” Luby v. Teamsters Health, Welfare, & Pension Tr. Funds, 944 F.2d
1176, 1184-85 (3d Cir. 1991); see, ¢.g., Viera, 642 F.3d at 418 (On remand. the [d]istrict [cJourt

must determine whether [the plan administrator] properly denied [P]laintiff recovery under the


NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KEVIN M. MCCANN, M.D.,

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

Defendants.

SHIPP, District Judge

This matter comes before the Court upon cross-motions between the parties. In the first,
Plaintiff Dr. Kevin McCann, M.D. (Dr. McCann”) seeks partial summary judgment as to his total
disability claim. (ECF No. 153.) Defendant Provident Life and Accident Insurance Company
(“Provident” or “Defendant”) opposed (ECF No. 167), and Dr. McCann replied (ECF No. 172).
In the second motion, Defendant moves to continue Dr. McCann’s Motion for Partial Summary
Judgment pursuant to Federal Rule of Civil Procedure 56(d) pending further discovery. (ECF No.
166.) Dr. McCann opposed (ECF No. 172), and Defendant replicd (ECF No. 177). 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. Dr. McCann’s motion is denied

and Defendant's motion is granted,


interventional radiologist, Defendants must have additional discovery. Accord with Hart v. City
of Philadelphia, 779 F. App’x 121, 128-29 (3d Cir. 2019) (finding that “the District Court abused
its discretion in not heeding [plaintiff's] request to allow him to conduct discovery so that he could
present evidence to properly oppose [defendant's] motion.”).
IV. CONCLUSION

For the reasons set forth above, Plaintiff's Motion for Partial Summary Judgment is denied
without prejudice pending further discovery on the items outlined above. Defendant's Motion for

a Continuance is granted. An Order consistent with this Memorandum Opinion will be entered.

Metta
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE



Dr. Coselli to Dr. Sweeney, apparently clarifying that he no longer supported disability status for
Dr. McCann. as well as other related records.’

Additional discovery will assist the Court in determining whether or not “evidence exists
from which a rational person could conclude that the position of the person with the burden of
proof on the disputed issue is correct.” EBC, Inc., 618 F.3d at 262. “Ultimately, Plaintiff bears
the burden of proof and must present required medical information to the Plan in order for the Plan
(through the Claims Administrator) to find that he is disabled.” Zewawell v, Long Term Disability
Income Plan or Choices Eligible Emps. of Johnson & Johnson, No. 07-5973, 2010 WL 3862543,
at *10-11 (D.N.J. Sept. 27, 2010). Dr. McCann asserts that “there is no doctor in this entire 2500+
page record, whether treating providers or records reviewers,” including Defendant's in-house
medical experts, “who asserted that Dr. McCann could safely resume his interventional radiology
procedures or take call.” (PI.'s Moving Br. | 1, ECF No. 153-2.) Nevertheless, as discussed above,
Defendants have identified a number of ambiguities in Dr. Coselli's opinion regarding Dr.
McCann's total disability claim, including but not limited to his September 20, 2010 letter.
Moreover, as discussed above, Dr. Coselli’s opinion was foundational to many of the medical
opinions in this matter that were given subsequent to his. In order to properly oppose Rr.
McCann‘s motion and, perhaps, establish that no rational person could rely on Dr. Coselli’s

opinion as supporting a finding that Dr. McCann was totally disabled from working as an

+ The Court previously affirmed Judge Bongiovanni's decision to strike related evidence from the
administrative record. (See generally Mem. Op., ECF No 147 (Shipp, J.).) Nevertheless, the Court
finds that the appeal of Judge Bongiovanni’s prior order came before the Court in a different
posture and was reviewed under a different legal standard. See Farmers & Merchs. Nat ‘t Bank v.
San Clemente Fin. Grp. Sec., Inc., 174 F.R.D, 572. 585 (D.N.J. 1997) (citations omitted) (noting
that “particularly broad deference [is] given to a magistrate judge’s discovery rulings”). Moreover,
the Court observes that even when striking these documents, Judge Bongiovanni cautioned the
parties that the documents “may be considered by the District Court iF it so chooses.” (Mem. Op.
9, ECF No. 70 (Bongiovanni, J.).)


457 F. App’x 132, 136 (3d Cir. 2012) (quoting Goodman v. Mead Johnson & Co., 534 F.2d 566,
573 (3d Cir. 1976)). Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issuc as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). “[D]isputes are
‘genuine’ if evidence exists from which a rational person could conclude that the position of the
person with the burden of proof on the disputed issue is correct.” EBC, Inc. v. Clark Bldg. Sys.,
Inc., 618 F.3d 253, 262 (3d Cir. 2010) (citation omitted). To decide whether a genuine dispute of
material fact exists, the Court must consider all facts, drawing all reasonable inferences in a light

most favorable to the non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir.

2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 248 (1986)). The Court will not
“weigh the evidence and determine the truth of the matter but will determine whether a genuine
dispute necessitates a trial. Anderson, 477 U.S, at 249, Absent a genuine dispute for trial,
summary judgment as a matter of law is proper.

Under Rule 56(d), a party may oppose summary judgment on the grounds that insufficient
discovery has been taken. Malouf v. Turner, 814 F, Supp. 2d 454, 459 (D.N.J. 2011), If facts are
unavailable to the nonmovant, it may “show{ ] by affidavit or declaration that, for specific reasons,
it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d). If the nonmovant
presents sufficient reasoning by affidavit, the Court may: “(1) defer considering the motion or deny
it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d); see also Bracy v. Pfizer, Inc., 839 F. App’x 691, 694

(3d Cir, 2020) (“Where the factual record is inadequate for a nonmovant to respond to a motion

for summary judgment, the district court may defer or deny the motion.”). ~[C]hallenges under


attending physician statement (“APS”) dated April 2, 2008, Dr. Coselli noted that Dr. McCann
was “asymptomatic” and had “no restrictions” other than “lifting to the extent that it elicited a
Valsalva maneuver.”' (Def.’s Statement of Material Facts in Opp’n to PI.’s Summ. J. Mot. §f I1-
12, ECF No. 167-1 (“DSMF”); Pl.’s Resp. to Def.’s Statement of Material Facts ff 11-12, ECF
No. 173-4 (“PRDSMF”).) Furthermore, the parties agree that on July 30, 2008, Provident Life
received an APS from Dr. Coselli, which reiterated that Dr. McCann was “asymptomatic,” and
was released to return to his employment as an interventional radiologist except “no lifting that
elicits Valsalva[] maneuver otherwise no restrictions.” (DSMF 4 34; PRDSMF {| 34.) Defendant
also notes that on July 30, 2008, in response to a question on a form asking, “[h]ave you advised
patient to return to work?”, Dr. Coselli marked an “X” in the box labeled “Yes.” (DSMF 42;
PRDSMF § 42.) Additionally, Defendant cites a somewhat ambiguous September 9, 2009 note
from Dr. Coselli stating that during a visit, he and Dr. McCann “discussed the terminology of
permanent and total disability and we agreed to disagree regarding the sequence of events. The
fact remains that over the past two years following him, his aorta has been essentially stable.”
(DRPSMF 4 54 (emphasis omitted); Pl.’s Reply to Def.’s Resp. to PI.’s Statement of Material Facts
4,54, ECF No. 172-1 (“PRDRPSMF”) (emphasis omitted).)

By October 22, 2009, at Dr. Coselli’s recommendation, Dr. McCann sought out a local
primary physician, Dr. David Lombardi, to coordinate and manage his care. (PSMF 4 54-55;
DRPSMF §f 54-55.) Based on the September 9, 2009 and April 3. 2008 documentation from Dr.
Coselli discussed above, as well as his own office visit with Dr. McCann, Dr. Lombardi agreed

that Dr. McCann had an ongoing disability. (DRPSMF { 69; PRDRPSMF { 69.) Dr. Lombardi

'“A Valsalva maneuver is a breathing technique that requires a forceful attempted exhalation
against a closed airway.” McCann, 907 F.3d at 136 n.5.

4


aorta.” (PSMF 4 23 (citations omitted); DRPSMF 4 23.) The parties agree that Dr. Coselli
instructed Dr. McCann to “avoid stressful situations that could cause increases in his blood
pressure.” (PSMF § 25; DRPSMF { 25.) Furthermore, the parties agree that on September 19,
2008, Dr. Coselli found that Dr. McCann should be “classified as fully disabled permanently.”
(PSMF {| 26 (citations omitted); DRPSMF 4 26.) Moreover, the parties also agree that on
September 9, 2009, Dr. Coselli found that Dr. McCann’s disability status remained unchanged.
(PSMF { 26; DRPSMF § 26.)

Dr. McCann submitted a claim for benefits under the Policy in March 2008. (PSMF 4 27;
DRPSMF § 27.) In that claim, Dr. McCann advised that he suffered from an abnormally dilated
ascending aorta and that his attending physician, Dr. Coselli, had imposed certain restrictions on
his activities, including “[a]void[ing] heavy lifting, [and] avoid[ing] stress to help kecp blood
pressure (“BP”) under control to prevent further dilation of aorta.” (PSMF §§ 27-28; DRPSMF i]
27-28.) A September 4, 2008 letter conveyed Defendant's decision to initiate payments for total
disability as of June 8, 2008. (PSMF 4 34; DRPSMF { 34.) By September 11, 2008, however,
Defendant had referred Dr. McCann’s file for a full medical review by its in-house cardiologist,
Dr. Joseph Davids. (PSMF 9 35; DRPSMF 4] 35.) Dr. Davids’s review ultimately determined that
the restrictions and limitations identified by Dr. Coselli were supported with respect to Dr.
McCann's aortic aneurysm. (PSMF § 37; DRPSMF § 37.) By letter dated January 6, 2009,
Defendant determined that Dr. McCann was totally disabled and qualified for benefits. (PSMF J
43-44; DRPSMF §f 43-44.)

Defendant notes, however, that as early as April 2008, there were a number of observations
by Dr. Coselli that are somewhat discordant with a finding that Dr. McCann's aortic condition

rendered him disabled for the purposes of the Policy. For example, the parties agree that in an


I. BACKGROUND

The parties are familiar with the factual and procedural history of this matter, and therefore
the Court only recites those facts necessary to resolve the instant motion. Dr. Kevin McCann is a
radiologist certified in the specialty of interventional radiology. McCann v, Unum Provident, 907
F.3d 130, 133 (3d Cir. 2018). Defendant Provident Life, later Unum Provident Corporation, issued
to Dr. McCann disability income policy number 6-337-04053663, effective July 1, 1991 (the
“Policy”), which remains in effect to date. (PI."s Statement of Material Facts 1, ECF No. 153-1
(“PSMF”); Def.’s Resp. to Pl.’s Statement of Material Facts ¥ |, ECF No. 167-2 ((DRPSMF”).)
Under that policy, Dr. McCann was entitled to disability payments from Defendant in the event he
was “not able to [pJerform the substantial and material duties of [his] occupation.” (PSMF { 2;
DRPSMF { 2.)

As early as 2006, Dr. McCann began to experience the symptoms that would give rise to
both his disability claim with Defendant and the instant litigation. (PSMF 4 14; DRPSMF { 14.)
In December of 2006, Dr. McCann was diagnosed with obstructive sleep apnea. (PSMF 4 |4;
DRPSMF § I4.) Following an April 2007 episode of shortness of breath, Dr. McCann was treated
at an emergency room, and an echocardiogram showed that he had a mildly dilated aortic root.
(PSMF § 20; DRPSMF 4 20.) On January 9, 2008, a CT scan measured the dilation of the aortic
root at 3.8-4.0 centimeters. (PSMF 4 21; DRPSMF € 21.) Subsequently, Dr. McCann consulted
Dr. Joseph S. Coselli, a cardiothoracic surgeon at Baylor Clinic in Texas. (PSMF § 22; DRPSMF
€ 22.) Inan April 3, 2008 letter, Dr. Coselli determined that Dr. McCann's aortic aneurysm showed
a dilation of four centimeters and did not require surgical intervention at that time. (PSMF § 23;
DRPSMF € 23.) Nevertheless, in the April 3, 2008 letter, Dr. Coselli found that "Dr. McCann has

hypertension and sleep apnea putting him into a high-risk population for further dilation of his

nm