Patton, Michael v. MFS/Sun Life Finan D

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4765
MICHAEL PATTON
Plaintiff-Appellant,
v.
MFS/SUN LIFE FINANCIAL DISTRIBUTORS, INC.
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 04-CV-1335—Larry J. McKinney, Chief Judge.
____________
ARGUED SEPTEMBER 21, 2006—DECIDED MARCH 12, 2007
____________
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
CUDAHY, Circuit Judge. When Michael Patton seriously
injured his knee, his doctors concluded that he was no
longer able to perform his job as a truck driver for Pac-
Van, Inc. Patton presented a claim for long-term disability
benefits to the administrator of Pac-Van’s employee
benefits plan, MFS/Sun Life Financial Distributors, Inc.
Sun Life initially approved Patton’s benefits, but discon-
tinued them a year later. It found him able to perform his
job in light of his training for an even more physically
stressful career as a paramedic and a bizarre series of
contradictory letters from his orthopedic specialist, first
claiming that Patton was unable to work, then indicating
2 No. 05-4765
he was, then finally reversing course again and indicating
that he was unable to work. Patton sued for the discontin-
ued benefits under the Employee Retirement Income
Security Act. The district court limited its review to Sun
Life’s administrative record and denied Patton’s motion
to permit discovery and the introduction of new evidence.
Sun Life moved for summary judgment and the district
court granted the motion. Patton now appeals the grant
of summary judgment and the denial of his motion for
discovery. We reverse.
I. Background
On January 10, 2003, Michael Patton fell from a ladder
while removing Christmas decorations at his house,
injuring his left knee. He went to his doctor three days
later and then, on January 22, made a fateful visit to a
specialist who will feature large in this tale, orthopedic
surgeon Dr. Thomas Ambrose. An MRI revealed softening
of cartilage in the patella and Ambrose prescribed a
physical therapy regimen that seemed to improve the
knee somewhat. But Patton returned on March 12, com-
plaining of “intermittent locking and sharp pain” in the
knee. Ambrose decided to operate and performed a left
knee arthroscopy, a partial lateral miniscectomy and an
adhesive resection. In an April 9 follow-up examination,
Ambrose prescribed a second regimen of rehabilitation.
Patton’s injury interfered with his job as a truck driver
for Pac-Van, Inc.; he stopped working on Monday, January
13, 2003. Pac-Van provided its employees with a long-term
disability insurance plan administered by MFS/Sun Life
Financial Distributors, Inc. (Sun Life), and funded by an
insurance policy issued by Sun Life. Plan participants
are entitled to Long-Term Disability benefits when they
provide notice and proof that they are “Totally or Partially
Disabled.” (R. 24 at 16.) For twenty-four months after
No. 05-4765 3
an initial ninety-day “Elimination Period,” an employee
is “Totally Disabled” if injury or illness leaves him “unable
to perform Material and Substantial Duties of his Own
Occupation.” (Id. at 13.) One’s “Own Occupation” is one’s
“usual and customary employment . . . as it is generally
recognized in the national economy” (id. at 12); its “Mate-
rial and Substantial Duties” are the “essential tasks,
functions, skills or responsibilities” it requires (id. at 11).
On April 25, 2003, Patton submitted a long-term disabil-
ity claim statement to Sun Life, alleging that he was
totally disabled, that is, unable to work as a truck driver.
He attached a Sun Life Attending Physician’s Statement
form filled out by Dr. Ambrose. Ambrose indicated that
Patton could work an eight hour day, but only with cer-
tain restrictions. For instance, he could walk for no more
than six to ten hours a day, sit for no more than five to ten
hours a day (for no more than one hour at a time) and lift
no more than twenty-five pounds repeatedly and no more
than 180 pounds occasionally. Apparently, he did not
believe Patton could drive: a series of check boxes for
indicating that Patton could drive one to three hours, three
to five hours, and five to ten hours were left blank.1
Overall, Ambrose found that Patton was capable only of
“light work” as defined in the U.S. Department of Labor
Dictionary of Occupational Titles. In the prognosis sec-
tion, Ambrose checked a box indicating that Patton’s
limitations would apply “[p]ermanently.” In the “vocational
rehabilitation” section, Ambrose indicated that he had
reviewed the duties of Patton’s occupation “per patient’s
report” and recommended vocational counseling and
1
Sun Life’s form does not provide a separate check box to
indicate that no driving is allowed, though it does provide one
to indicate that no walking or standing is allowed. All other
questions on the page have been answered.
4 No. 05-4765
rehabilitation to find a way to “Decrease stress on his
Left knee.” (Id. at 283-86.)
Patton also included a letter from Ambrose and a fellow
practitioner. This letter stated in part:
[Patton] continues to have pain and difficulty with his
L knee and for this reason we have recommended
activity restrictions in order to decrease the stress
on his knee. His current restrictions include no repeti-
tive lifting over 25 pounds, no repetitive climbing or
squatting, and no sitting with knees flexed for over
one hour at a time.
The natural progression of osteoarthritis is to slowly
worsen over time. We hope to prolong the use of his
L knee so he does not require total joint arthroplasty
for quite some time as joint replacement does not
last long in the younger, more active person. Unfortu-
nately, his current job requires him to do many stress-
ful activities including driving with his knees flexed,
and also requires him to perform repetitive lifting,
climbing, and squatting activities. He is currently
in need of vocational rehab training in order to be in
a career that would not be so stressful on his knee
joint. (Id. at 293.)
On May 7, 2003, while Sun Life was evaluating Patton’s
claim, Ambrose discontinued treating Patton:
Michael is seen back today for follow up of his left
knee. He continues to work on physical therapy and
rehabilitation and reports improving strength as
well as motion about the knee. . . .
Michael is going to continue his therapy and rehabili-
tation on his own. He has resumed school and is go-
ing back to study paramedic training. I am going to
release him from further routine follow up although
I will be happy to see him back on an as necessary
basis. (Id. at 211.)
No. 05-4765 5
Sun Life appears to have received this memo in a medical
record request on June 17, 2003.
Sun Life approved Patton’s claim on July 21, 2003, but
a month later noticed something puzzling: his paramedic
training. Patton’s claim form indicated that he was a
“former fire department volunteer with some first re-
sponder training,” and that he had considered retraining
as a paramedic. Patton visited vocational rehabilitation
specialist Michael Blankenship, who reported that Pat-
ton wanted to become a “registered nurse or paramedic”
and was enrolled at Ivy Tech State College, taking courses
in English, mathematics and interpersonal communica-
tions.
But providing emergency medical service is generally
at least as physically stressful as driving a truck. The
Department of Transportation’s Occupational Description
for “EMT-Paramedic” indicates “[v]ery [h]eavy” strength
requirements. Paramedics must be able to stoop and
kneel frequently, lift fifty pounds regularly and twenty
pounds “constantly.” Some requirements exceed Ambrose’s
restrictions. As a result, paramedic training seems a
strange course of action for one restricted as Patton claims
to be. Unless his condition improved—and Ambrose sug-
gested that it would not—Patton could never put his
training to use.
Sun Life questioned Dr. Ambrose about this peculiarity.
On August 26, 2003, it faxed him the message, “Mr. Patton
indicated that you provided him with a release so that
he can start paramedic’s training next week. Please
provide a copy of the release with any restrictions.” (Id. at
166.) Ambrose responded by sending another copy of the
April 25 material that Patton had included with his claim.
On September 30, 2003, Sun Life sent Ambrose a copy
of the DOT Occupational Description for “EMT-Para-
medic,” Patton’s job description and a letter, the second
6 No. 05-4765
page of which is a specially-composed form above a signa-
ture block:
On August 26, 2003, we requested that you provide us
with a copy of Mr. Patton’s release with his updated
restrictions. We received the copy of the April 24, 2003
notes instead.
Please provide us with a copy of the recent release
allowing Mr. Patton to start his Paramedic training.
Please include with that release a copy of his current
restrictions.
By sending a copy of the April 24, 2003 notes, was your
intent to indicate that the restriction contained in
the note were Mr. Patton’s current restrictions?
Please check one Yes _____ No _____
Please advise if Mr. Patton’s restrictions have been
revised since April 24, 2003. If so, what are the new
restrictions?
If you have released Mr. Patton to pursue a career in
Paramedics, would this be reasonable given the
described restrictions in your April 24, 2003 notes.
(Id. at 160.)
Ambrose didn’t respond to the letter or a reminder
sent December 3, 2003. Neither did he immediately re-
spond to a second copy of the letter sent February 9, 2004.
Finally, on March 9, 2004, Ambrose faxed to Sun Life a
copy of the form he had received on September 30 and
February 9, which he had signed. He had checked the “no”
box to say that he had not intended to indicate that the
April 25, 2003 restrictions were current, and wrote under
the question “Please advise if Mr. Patton’s restrictions
have been revised . . .” the phrase “released without
restrictions 05/07/03.” The form was otherwise unmarked.
Armed with this letter, Sun Life cut off Patton’s bene-
fits on April 28, 2004, explaining to Patton that it had
No. 05-4765 7
discovered that paramedic work was as demanding as
truck driving and that Ambrose had revealed that Patton
had not been disabled since May 7, 2003. On May 26, 2004,
Patton filed an administrative appeal and presented
another letter from Dr. Ambrose, this one dated May 12,
2004 and stating:
Mr. Michael Patton is a patient with known severe
premature arthritis of the left knee. He is unable to
utilize the knee to depress and release a mechanical
clutch of a tractor trailer rig. This is a permanent
restriction, and as a result, he is disabled from his
previous occupation as an overland truck driver. I am
recommending vocational rehabilitation for job re-
training. (Id. at 117.)
Patton did not submit any other evidence. Sun Life
referred the case to an orthopedic specialist, Dr. Robert
Foster. Foster opined that “many people with medial facit
arthritis can drive a truck doing deliveries and only the
test of time would be able to determine its suitability . . .
to the degree and duration.” Sun Life reviewed Patton’s file
and affirmed its prior decision on July 29, 2004. Patton
then brought the present action under the Employee
Retirement Income Security Act § 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B) (ERISA), to “recover benefits due to him
under the terms of his plan.” Specifically, Patton seeks
benefits for the twelve month period after his benefits were
cut off, during which he was “Totally Disabled” within the
meaning of the plan if he was unable to perform the
material and substantial duties of a truck driver.
In the district court, the parties disputed the appro-
priate standard of review of Sun Life’s benefits deter-
mination. Sun Life filed a motion for summary judgment
on August 19, 2005, in which it argued that its determina-
tion should only be overturned if it was arbitrary and
capricious, because the plan stated that “proof [of any
8 No. 05-4765
disability claim] must be satisfactory to Sun Life,” citing
Donato v. Metropolitan Life Insurance Co., 19 F.3d 375,
377 (7th Cir. 1994). Matters were complicated on Septem-
ber 20, 2005, when this Court decided Diaz v. Prudential
Insurance Co. of America, 424 F.3d 635 (7th Cir. 2005). In
Diaz, we held that to be subject only to deferential “arbi-
trary and capricious” review, a plan must sufficiently
warn its participants that it grants the plan administrator
“the power to interpret the rules, to implement the rules,
and even to change them entirely.” Id. at 639. We stated
that “[n]o single phrase such as ‘satisfactory to us’ is likely
to convey enough information” to put plan members on
notice, and added that “[t]o the extent that the test applied
in Donato . . . is inconsistent with the approach we are now
articulating, we hereby disapprove” of that case. Id. at 639-
40.
Patton soon argued not only that Diaz had changed the
standard of review, but that the change required further
changes to the court’s case management order. On Septem-
ber 30, 2005, Patton filed a memorandum of law opposing
Sun Life’s motion for summary judgment in which he
argued that under Diaz, Sun Life’s decision was entitled
not to deferential “arbitrary and capricious” review, but
rather ordinary de novo review. He also filed a summary
judgment motion of his own and presented an affidavit
claiming that his paramedic training to date had not
been physically stressful. Sun Life moved to strike the
motion for summary judgment and affidavit as in violation
of the court’s case management order. The court’s case
management order required dispositive motions to be
filed by August 19, 2005, and closed discovery for the
plaintiff on September 19, 2005 (by agreement, neither
party had engaged in any discovery). Patton argued in
response that the change in the standard of review brought
about by Diaz opened up avenues for appropriate discovery
where none had existed before: while a court exercis-
No. 05-4765 9
ing “arbitrary and capricious” review must review only the
documents presented to the plan administrator, a court
exercising de novo review may, in its discretion, hear
new evidence. Patton asked the court to alter the case
management order to reopen discovery and permit the
late filing of his summary judgment motion.
The district court denied Patton’s motion to reopen
discovery and granted Sun Life’s motion to strike Patton’s
affidavit and his motion for summary judgment. On
November 28, 2005, the district court granted Sun Life’s
motion for summary judgment. It found that de novo
review applied, but that even under this non-deferential
standard the evidence before it did not present a genuine
issue of material fact, so that Sun Life was entitled to
judgment as a matter of law. Patton now appeals both
the grant of summary judgment and the denial of his
motion to reopen discovery.
II. Discussion
The two decisions that Patton appeals stand in a some-
what unusual relationship to one another, in that the
district court’s denial of Patton’s motion to reopen discov-
ery may make it pointless to correct any error in the grant
of summary judgment. Normally, of course, we must
remand for trial when we determine that summary
judgment is inappropriate, but we have not always fol-
lowed this general rule in ERISA cases, where the plain-
tiff has no right to a jury trial and unusually limited
abilities to introduce evidence. See Mathews v. Sears
Pension Plan, 144 F.3d 461, 468 (7th Cir. 1998). The
standard for summary judgment is more demanding than
the standard for judgment after a bench trial. If on a
certain record a district court believes a party is entitled
to summary judgment, then the same court, if required to
conduct a bench trial on that same record, will probably
10 No. 05-4765
decide the case for that same party. Consequently, if we
think that a district court granted summary judgment
despite the existence of genuine issues of material fact, but
know that no new evidence will be presented at trial on
remand, we can in most (though not necessarily all)2
situations know with certainty that remand would be an
unwarranted “empty formality.”3 Mathews, 144 F.3d at
2
In some situations, the winner of a bench trial might be
uncertain even though no new evidence will be presented. For
instance, an appellate opinion might illumine some aspect of
the record that the district court improperly ignored, in which
case the remand would be analogous to remanding agency action
for further consideration or explanation. See, e.g., Banks v.
Gonzales, 453 F.3d 449, 451 (7th Cir. 2006), citing SEC v.
Chenery Corp., 318 U.S. 80, 88-89 (1943); but see Mengistu v.
Ashcroft, 355 F.3d 1044, 1047 (7th Cir. 2004), citing Sahara
Coal Co. v. Office of Workers’ Comp. Programs, 946 F.2d 554, 558
(7th Cir. 1991) (applying the harmless error doctrine to review
of administrative action as an exception to the Chenery princi-
ple).
3
The First Circuit has taken a more far-reaching approach to
appeals of summary judgments in ERISA cases, treating sum-
mary judgment as summary in name only. “[I]n an ERISA case
where review is based only on the administrative record before
the plan administrator and is an ultimate conclusion as to
disability to be drawn from the facts, summary judgment is
simply a vehicle for deciding the issue. . . . [T]he non-moving
party is not entitled to the usual inferences in its favor.” Orndorf
v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005),
cert. denied, 74 U.S.L.W. 3018 (U.S. Oct. 11, 2005), cited in
Bard v. Boston Shipping Ass’n., 471 F.3d 229, 235 (1st Cir. 2006).
We do not apply this potentially misleading standard for
“summary judgment,” but instead apply the normal rule: de novo
review, with judgment appropriate if there is no genuine issue
of material fact. Fed. R. Civ. P. 56(c), Semien v. Life Ins. Co. of
N. Am., 436 F.3d 805, 812 (7th Cir. 2006), cert. denied, 74
(continued...)
No. 05-4765 11
468; see also Fed. R. Civ. P. 61; Simpson v. Nickel, 450
F.3d 303, 306 (7th Cir. 2006) (holding that if nothing the
plaintiff could show would avoid summary judgment, “then
dismissing the complaint instead of waiting for a Rule 56
motion was harmless error”); Alioto v. Marshall Field’s
& Co., 77 F.3d 934, 936 (7th Cir. 1996) (same).
The present case does not present such a situation,
however. Patton has appealed both the district court’s
grant of summary judgment and its denial of his motion
to reopen discovery. Because we reverse both of these
decisions, there will be evidence introduced into the rec-
ord besides that which was before the district court at
summary judgment, and we therefore cannot say with
certainty how the district court will resolve the case on
remand.
A. Motion for Summary Judgment
We begin with the court’s grant of Sun Life’s motion for
summary judgment, which we review de novo. Semien v.
Life Ins. Co. of N. Am., 436 F.3d 805, 812 (7th Cir. 2006),
cert. denied, 74 U.S.L.W. 3629 (U.S. Oct. 2, 2006). Sum-
mary judgment is appropriate only if the evidence pre-
sents no issue of material fact, so the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P.
3
(...continued)
U.S.L.W. 3629 (U.S. Oct. 2, 2006); Vallone v. CNA Fin. Corp., 375
F.3d 623, 631 (7th Cir. 2004); Casey v. Uddeholm Corp., 32 F.3d
1094, 1099 (7th Cir. 1994) (“[T]he district court improperly
weighed evidence in this case in arriving at its decision to
grant summary judgment. . . . [T]he appropriate proceedings for
such fact-finding is a bench trial and not the disposition of a
summary judgment motion.”) Those who wish to ensure that a
judgment is treated with the deference due the result of a
bench trial are advised to eschew Rule 56 and stick to Rule 52(a).
12 No. 05-4765
56(c); Semien, 436 F.3d at 812. The moving party is so
entitled if no reasonable fact-finder could return a verdict
for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 254 (1986); Gleason v. Mesirow Fin., Inc.,
118 F.3d 1134, 1139 (7th Cir. 1997). Whether a reason-
able factfinder could return a verdict for the nonmoving
party is determined in part by the substantive burden of
proof that that party faces. Anderson, 477 U.S. at 252;
Patel v. Allstate Ins. Co., 105 F.3d 365, 370 (7th Cir. 1997).
Sun Life first argues that we should affirm summary
judgment for a reason not relied upon by the district court:
an allegedly heightened burden of proof upon Patton. The
court held that Patton merely had to show that he was
“totally disabled” within the meaning of the plan during
the relevant period to prevail (so-called “de novo review” of
Sun Life’s benefits determination). Sun Life urges that
the plan granted the administrator broad discretion to
determine entitlement to benefits, and consequently that
Patton had to instead show that Sun Life’s determination
was arbitrary and capricious (so-called “arbitrary and
capricious review”).
Which burden of proof applies is determined by the
ERISA plan itself, as interpreted under federal common
law. Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 659
(7th Cir. 2005); Kammler v. H/N Telecomm. Servs., Inc.,
305 F.3d 672, 680 (7th Cir. 2002). ERISA contract law is
shaped by ERISA’s goal of providing uniform remedies to
employees. See ERISA §§ 101(b) & 502(a)(1)(B), 29 U.S.C.
§§ 1001(b) & 1132(a)(1)(B); Cent. Laborers’ Pension Fund
v. Heinz, 541 U.S. 739, 743 (2004); Firestone Tire & Rubber
Co. v. Burch, 489 U.S. 101, 113 (1989); see also Sullivan
v. Cox, 78 F.3d 322, 326 (7th Cir. 1996) (holding that
ERISA common law of contract interpretation is shaped by
substantive ERISA goals). Absent clear language to the
contrary, plans are read to provide for searching judicial
No. 05-4765 13
review of benefits determinations: plenary review of the
administrator’s interpretation of the facts and plan,
Firestone Tire, 489 U.S. at 110-15; Sperandeo v. Lorillard
Tobacco Co., 460 F.3d 866, 870 (7th Cir. 2006); Ruttenberg,
413 F.3d at 659, fortified by the district court’s discre-
tionary authority to hear evidence that was not presented
in the administrative process, Casey v. Uddeholm Corp., 32
F.3d 1094, 1099 (7th Cir. 1994), citing Quesinberry v. Life
Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993).4
The employee thus presumptively has a right to an
“informed and independent judgment” on his claim for
benefits—informed by evidence as the court thinks neces-
sary, and fully independent of the plan administrator’s
findings and reasoning. Id.
As noted, this presumption can be overcome with clear
language to the contrary; an ERISA plan can provide for
more restrictive judicial review of benefits determinations
by including language that “gives the administrator or
fiduciary discretionary authority to determine eligibility
for benefits.” Diaz v. Prudential Ins. Co. of Am., 424 F.3d
635, 636-37 (7th Cir. 2005), citing Firestone Tire, 489 U.S.
at 115. The language must possess “requisite if minimum
clarity,” Diaz, 424 F.3d at 637-38, citing Herzberger v.
Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000); see
also Ruttenberg, 413 F.3d at 659; indicating that the
administrator “not only has broad-ranging authority to
assess compliance with pre-existing criteria, but also has
4
We have also suggested that this rule would apply “as a matter
of ordinary contract law, with no ERISA thumb on the scales.”
Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir.
2000), citing John H. Langbein, The Supreme Court Flunks
Trusts, 1990 Supreme Ct. Rev. 207, 223-26; see also Sullivan, 78
F.3d at 326 (“In cases arising under section 1145, federal courts
have consistently applied state contract law, so long as the
state law is not contrary to ERISA.”).
14 No. 05-4765
the power to interpret the rules, to implement the rules,
and even to change them entirely.” Diaz, 424 F.3d at 639.5
Sun Life claims that its plan limits judicial review by
stating that proof of disability “must be satisfactory to Sun
Life.” (R. 24 at 33.) But plan terms requiring only that
proof “satisfactory to us” be submitted for benefits are not
sufficiently clear to limit review. Every plan will require
employees to prove they are entitled to benefits before
receiving them, and provisions that merely implement
that basic requirement do not warn employees of broad
administrative discretion and limited review. Diaz, 424
F.3d at 637, citing Herzberger, 204 F.3d at 332; Kinstler v.
First Reliance Standard Life Ins. Co., 181 F.3d 243, 252
(2d Cir. 1999). Sun Life cites two cases that it claims are
to the contrary. See Donato v. Metro. Life Ins. Co., 19 F.3d
375, 379-80 (7th Cir. 1994); Bali v. Blue Cross & Blue
Shield Ass’n, 873 F.2d 1043, 1047 (7th Cir. 1989). They
are unquestionably to the contrary: we have expressly
overturned them. See Diaz, 424 F.3d at 640. The district
court was correct to apply a non-deferential, de novo
standard of review to Sun Life’s denial of Patton’s bene-
fits claim.
We must therefore determine whether the district court’s
independent review of the record was correct. Summary
judgment is appropriate only if no reasonable factfinder
could conclude that Patton was unable to drive a truck
from April 28, 2004 to April 28, 2005. Sun Life argues
5
We have set forth a model clause that serves as a “safe harbor”
for ERISA plans and plan members seeking to limit judicial
review: “Benefits under this plan will be paid only if the plan
administrator decides in his discretion that the applicant is
entitled to them.” Herzberger, 205 F.3d at 331. Other language
can be used, so long as it satisfies the minimum standard of
clarity. Sperandeo, 460 F.3d at 872; Herzberger, 205 F.3d at 332.
No. 05-4765 15
that two inconsistencies in Patton’s evidence prevent
reasonable disagreement about his claims. First, it notes
that Dr. Ambrose contradicted his initial April 25, 2003
and most recent May 12, 2004 diagnoses that Patton is
unable to drive a truck in his intervening March 9, 2004
response to Sun Life’s letter, in which he stated that
Patton faced no restrictions. Second, it notes that Patton
is studying a profession that, according to Dr. Ambrose’s
April 25, 2003 diagnosis, he will be permanently unable
to perform.
Sun Life begins its attack from Ambrose’s contradictory
letters by arguing that no reasonable factfinder could
believe Ambrose’s most recent letter of May 12, 2004. It
describes the May 12, 2004 letter as a “one-paragraph
conclusory statement, unsupported by any medical evi-
dence, clinical data, or office notes,” and correctly notes
that medical (and all expert) opinions which fail to ex-
plain the basis for their conclusions cannot by themselves
create a genuine issue of material fact. Bragdon v. Abbott,
524 U.S. 624, 653 (1998); Vollmert v. Wis. Dep’t of Transp.,
197 F.3d 293, 298 (7th Cir. 1999); Weigel v. Target Stores,
122 F.3d 461, 468-69 (7th Cir. 1997); Mid-State Fertilizer
Co. v. Exch. Nat. Bank of Chi., 877 F.2d 1333, 1339 (7th
Cir. 1989) (collecting cases). Such naked assertions are
indeed insufficient by themselves, but Ambrose’s letter
does not stand alone: the record also includes Ambrose’s
comparatively detailed April 25, 2003 diagnosis. This
diagnosis sets forth Ambrose’s opinion as to Patton’s
condition, his prognosis and the resulting limitations
he faces. It was detailed enough for Sun Life, which
initially approved benefits after receiving it, and it is
detailed enough for the federal courts, since “even brief
expert reports will suffice at the summary judgment
stage.” Abdullahi v. City of Madison, 423 F.3d 763, 772
(7th Cir. 2005), citing Vollmert, 197 F.3d at 300-01 (hold-
ing that an expert report at summary judgment must
16 No. 05-4765
supply the basis for the opinion but need not “give a
primer on why the facts allow the expert to reach [her]
conclusion”). The May 12, 2004 letter and the April 25,
2003 diagnosis are not identical in all details—for in-
stance, the 2004 letter states that Patton is unable to
drive a truck because of the stress of working the clutch;
the 2003 diagnosis instead mentions stooping, lifting
and sitting with knees flexed—but they are generally
consistent and together present a coherent opinion that
Patton’s knee leaves him unable to drive a truck.
Recognizing that the April 25, 2003 diagnosis is poison
to its summary judgment hopes, Sun Life argues that
the March 9, 2004 letter—the partially filled-out form in
which Ambrose stated that he released Patton without
restrictions on May 7, 2003—takes the 2003 diagnosis
out of the equation. Sun Life stresses that the March 9
letter is “unqualified” and “informed,” and both qualities
are indeed indisputable; the letter included no qualifica-
tion and was written after Sun Life sent Ambrose the
Department of Transportation fact sheets.
Nonetheless, a reasonable factfinder would be inter-
ested in other qualities as well, for instance, whether the
letter was considered, detailed or carefully composed. It
is ironic that Sun Life attacks Ambrose’s May 12, 2004
letter as terse and conclusory when the March 9, 2004
letter it claims decides the case is still less detailed.
Ambrose’s markings on Sun Life’s form are limited to a few
words stating that Patton was released without restric-
tions on May 7, 2003, and a checkmark indicating that his
re-mailing the April 25, 2003 diagnosis was not meant to
indicate that the diagnosis was still accurate. If it were not
that the letter undermines Ambrose’s credibility, it would
lack sufficient basis to be have weight as an independent
medical opinion. The letter disavows the April 25 diagno-
sis, but does not explain why Ambrose changed his opin-
ion, in fact why he apparently changed his opinion on May
No. 05-4765 17
7, 2003, only twelve days after he reported his original
diagnosis to Sun Life. Neither is there any explanation
why Ambrose, apparently having already rejected his April
25 diagnosis, sent another copy of that diagnosis to Sun
Life in August or September 2003.
Patton suggests, in light of these mysteries, that
Ambrose’s March 9 letter was a mistake: somehow,
Ambrose misunderstood Sun Life’s letter and stated that
Patton faced no restrictions when he actually did. Sun Life
urges that there is no evidence that the letter was a
mistake, but that is not quite true. There is no extrinsic
evidence of mistake; no one has testified as to why the
letter was sent if it was not true. But that is not fatal to
Patton’s claim in light of the intrinsic evidence suggest-
ing mistake—the detailed April 25 diagnosis, the subse-
quent May 12, 2004 letter reaffirming that diagnosis, the
lack of detail in the March 9, 2004 letter and the unex-
plained contradictions between the various communica-
tions. Some of Ambrose’s messages to Sun Life contain
either errors or lies, but reasonable factfinders could
locate them in different places.
Sun Life cites the rule of thumb that a party cannot
defeat summary judgment by having a witness contra-
dict her own prior deposition testimony. Pourghoraishi v.
Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006); Adelman-
Tremblay v. Jewel Co., 859 F.2d 517, 520-21 (7th Cir.
1988). When a witness abandons her testimony in the face
of a pending summary judgment motion, the change is
often a transparent ruse designed to prolong the case;
allowing the ruse to succeed would defeat summary judg-
ment’s purpose of weeding out clearly unmeritorious cases.
Bank of Ill. v. Allied Signal Saftey Restraint Sys., 75 F.3d
1162, 1168-69 (7th Cir. 1996); see also, e.g., Weigel, 122
F.3d at 463; Adelman-Tremblay, 859 F.2d at 518. But
while a change in testimony is often a clear ruse, it is
sometimes plausible. A number of scenarios might ex-
18 No. 05-4765
plain a change: a confusing deposition question, circum-
stances indicating a lapse of memory, Pourghoraishi, 449
F.3d at 759, relevant new information discovered after the
original testimony, Adelman-Tremblay, 859 F.2d at 520-
21, or ambiguous or incomplete earlier testimony, Aviles v.
Cornell Forge Co., 183 F.3d 598, 602-03 (7th Cir. 1999);
Shepherd v. Slater Steels Corp., 168 F.3d 998, 1007 (7th
Cir. 1999); Bank of Ill., 75 F.3d at 1171; Adelman-
Tremblay, 859 F.2d at 520. Consequently a court must
examine the particular circumstances of a change in
testimony to see whether it is plainly incredible or
merely creates a credibility issue for the jury. Bank of Ill.,
75 F.3d at 1169-70.6
Patton points out that Ambrose’s diagnoses and letters
were not made under oath, see Bank of Ill., 75 F.3d at
1169; Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.
1994), but there is a more basic problem with Sun Life’s
argument: Ambrose’s representations prior to his May 12,
2004 statement that Patton was unable to drive a truck
were inconsistent and ambiguous, and the May 12, 2004
letter could plausibly be considered a truthful effort to
resolve that ambiguity. In cases where we have rejected a
6
We have also suggested, in dicta, that a witness who changes
her testimony must explain the reason for her change in the
new testimony itself or the new testimony may not be con-
sidered; even if one could infer a reason for the change in
testimony, one may not do so unless the witness herself offers
that reason in her new testimony. Beckel v. Wal-Mart Assocs.,
Inc., 301 F.3d 621, 623-24 (7th Cir. 2002). The justification for
that rule is not clear. It would be helpful for a witness to ex-
plain any inconsistencies—indeed, in the present case, the reason
for Dr. Ambrose’s inconsistent statements is one of the key
issues—but it is unclear what basis there is for ignoring a rea-
son for a change in testimony that is apparent from other
evidence in the record.
No. 05-4765 19
change in testimony, the witness has consistently ad-
hered to one version of events prior to the change. Take,
for instance, Adelman-Tremblay, where the court found
a doctor’s testimony that the plaintiff suffered an allergic
reaction “a model of clarity.” 859 F.2d at 520. It is obvious
why in such a situation no one could credit the doctor’s
sudden, case-saving realization that the plaintiff ’s reac-
tion might have been toxic instead.
In the present case, by contrast, Ambrose’s position
prior to May 12, 2004 was inexplicably inconsistent, a
model of confusion. Any jury faced with both the April 25,
2003 diagnosis (Patton is unable to drive) and the
March 9, 2004 letter (Patton is able to drive) would have
to conclude either that one of the diagnoses was wrong or
that some unknown factor explained the contradiction. The
May 12, 2004 letter purports to clarify which of the two
earlier positions is correct (the April 25, 2003 diagnosis
that Patton is unable to drive). The jury could go either
way in the absence of the clarification; why should it be
unable to believe the clarification? Ambrose’s letter
would be more powerful if it explained why he had previ-
ously taken inconsistent positions—an omission perhaps
not the fault of Patton or his lawyer, given that as far
as we know during the ERISA administrative proceeding,
Patton lacked the ability to compel Ambrose’s testimony
or cross-examine him. Cf. Beckel v. Wal-Mart Assocs., Inc.,
301 F.3d 621, 623 (7th Cir. 2002). Ambrose may not
have been eager to explain in detail why his office sent
out false information about a patient to an insurance
company. But even with the letter of May 12, 2004 as it is,
a reasonable factfinder could conclude that Ambrose’s
March 9, 2004 letter was a mistake and that the April 25
diagnosis and May 12, 2004 letter represent Ambrose’s
true opinion and are correct.
This leaves Sun Life’s second and more serious argu-
ment: that Patton is training to perform paramedic work,
20 No. 05-4765
which is at least as stressful as driving a truck. This is
an important problem for Patton’s claim, but on the
current record the contradiction is not as glaringly clear
as Sun Life makes out. It urges that Dr. Ambrose’s re-
lease of Patton from further treatment on May 7, 2003
was “based on the job requirements of an EMT and
Plaintiff ’s ability to do the EMT job.” (Br. of Appellee 24.)
But Ambrose’s notes do not indicate that Ambrose at
that time knew the job requirements of an EMT or be-
lieved that Patton could perform them. Ambrose is an
orthopedic surgeon, not a rehabilitation specialist. He
evaluated whether Patton was able to perform his own job
as Patton described it in the April 25 diagnosis, filling out
the requested information on Sun Life’s form, but he may
not have thought it was his business to go beyond that
and evaluate Patton’s proposed career. The sole mention
of paramedic work in Ambrose’s notes is the brief re-
mark, “He has resumed school and is going back to study
paramedic training.” While a reasonable factfinder could
conclude that Ambrose thought Patton’s knee could
handle the stress of paramedic work, that inference is
not compelled.
Neither this evidence about Patton’s EMT aspirations
nor any other evidence in the record, such as Dr. Foster’s
very limited opinion that, basically, he was unsure
whether Patton was able to drive a truck, takes the case
out of the range of reasonable disagreement. The contra-
dictions in Dr. Ambrose’s letters and the possible contra-
diction in Patton’s studies are key issues that could
convince a reasonable factfinder that Patton’s disability
is a sham and that he is not entitled to benefits. But they
do not compel a reasonable factfinder to so conclude. There
remain genuine issues of material fact that render the
district court’s grant of summary judgment inappropriate.
No. 05-4765 21
B. Motion to Reopen Discovery
Though the district court should not have decided the
case on summary judgment, the question remains whether,
pursuant to Patton’s motion, it should have reopened
discovery to permit Patton to, for instance, depose Dr.
Ambrose. Sun Life urges affirmance, arguing that Patton
had the opportunity during his administrative appeal to
introduce the equivalent of the evidence he hopes to
introduce on remand. Patton rejoins that the evidence
he wants to present is necessary for the court to conduct
an informed evaluation of his claims.
As already noted, Sun Life’s plan does not limit its
participants’ rights to informed, independent review of
benefit determinations by the courts, so the district court
had discretion to “limit the evidence to the record before
the plan administrator, or . . . [to] permit the introduc-
tion of additional evidence necessary to enable it to
make an informed and independent judgment.” Casey v.
Uddeholm Corp., 32 F.3d 1094, 1099 (7th Cir. 1994), citing
Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025
(4th Cir. 1993).7 We review the denial of Patton’s motion
7
Other courts have taken different approaches to the admission
of evidence outside the administrative record. See, e.g., S. Farm
Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 101-02 (5th Cir. 1993)
(holding that additional evidence may be taken as to the mean-
ing of plan terms, but not as to other questions); Perry v. Sim-
plicity Engineering, 900 F.2d 963, 967 (6th Cir. 1990) (holding
that review must be limited to the administrative record); Moon
v. Am. Home Assurance Co., 888 F.2d 86, 89 (11th Cir. 1989)
(holding that additional evidence should always be admitted).
However, the Second, Third, Fourth, Seventh, Eighth, Ninth
and Tenth Circuits agree that the district court should have
discretion to admit or not to admit new evidence. See Hall v.
Unum Life Ins. Co. of Am., 300 F.3d 1197, 1202 (10th Cir. 2002);
DeFelice v. Am. Int’l Life Assurance Co. of N.Y., 112 F.3d 61, 66-
(continued...)
22 No. 05-4765
for abuse of that discretion, Semien v. Life Ins. Co. of
N. Am., 436 F.3d 805, 813 (7th Cir. 2006); Vallone v.
CNA Fin. Corp., 375 F.3d 623, 631 (7th Cir. 2004), which
is appropriate where the district court’s decision cannot
be rationally based upon the record evidence, or is based
on an erroneous legal conclusion, or is supported by
clearly erroneous factual findings or clearly appears
arbitrary, Vallone, 375 F.3d at 631. The district court
must sufficiently explain its decision to show us that it
considered the relevant factors and exercised its discre-
tion. United States v. Cunningham, 429 F.3d 673, 679 (7th
Cir. 2005).
Numerous factors are relevant to the district court’s
decision, the most central being the court’s need to hear
the evidence in order to make an informed evaluation of
the parties’ claims and defenses. In Casey v. Uddeholm
Corp., 32 F.3d 1094 (7th Cir. 1994), the plaintiff sued to
recover benefits from the Uddeholm Health Benefits
Plan for injuries he sustained in an attempt to commit
suicide; the key question was whether the injuries
were “sustained accidentally.” Id. at 1095-96. The plan
7
(...continued)
67 (2d Cir. 1997); Mongeluzo v. Baxter Travenol Long Term
Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995);
Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993);
Luby v. Teamsters Health, Welfare & Pension Trust Funds, 944
F.2d 1176, 1184-85 (3d Cir. 1991). Of course, when a plan grants
broad discretion to a plan administrator to interpret the plan
and make benefit determinations, rendering its determinations
subject only to deferential “arbitrary and capricious” review,
discovery is generally not permitted, Vallone v. CNA Fin. Corp.,
375 F.3d 623, 629 (7th Cir. 2004), citing Perlman v. Swiss Bank
Corp. Comprehensive Disability Protection Plan, 195 F.3d 975,
981-82 (7th Cir. 1999), though discovery is sometimes allowed
into certain limited subjects, see generally Semien v. Life Ins. Co.
of N. Am., 436 F.3d 805, 812-16 (7th Cir. 2006).
No. 05-4765 23
administrator determined that injuries from a suicide
attempt could never be accidental, but the district court
disagreed, holding that the injuries could have been
accidental if Casey had been insane at the time of the
attempt. Id. at 1096-97. The district court then granted
summary judgment to Uddeholm on the ground that
Casey had not been insane. Id. at 1099. On appeal this
court reversed, holding that there were genuine issues
of material fact forestalling summary judgment, and then
addressed whether the district court should be able to
hear additional evidence on remand:
In Quisenberry v. Life Ins. Co. of North America, 987
F.2d 1017, 1025 (4th Cir. 1993) the Sixth Circuit [sic]
held that a district court may review evidence bey-
ond that which was before the plan administrator
only when circumstances clearly establish that addi-
tional evidence is necessary, but that as a general
matter the district court should restrict itself to the
evidence before the plan administrator. In this case
the record before the plan administrator was relatively
undeveloped. Therefore, in its de novo review the
district court may limit the evidence to the record
before the plan administrator, or it may permit the
introduction of additional evidence necessary to enable
it to make an informed and independent judgment.
32 F.3d at 1099. The most important factor for the district
court, therefore, seems to be whether the evidence is
“necessary” to an “informed and independent judgment” on
the parties’ claims and defenses, which will obviously
depend on the nature of the claims and whether the
administrative record was “relatively undeveloped” with
respect to those claims. Most other courts that share our
discretionary approach to new evidence agree. Hall v.
Unum Life Ins. Co. of Am., 300 F.3d 1197, 1202 (10th Cir.
2002) (holding that the record should be expanded “when
circumstances clearly establish that additional evidence
24 No. 05-4765
is necessary to conduct an adequate de novo review of
the benefit decision”); Donatelli v. Home Ins. Co., 992
F.2d 763, 765 (8th Cir. 1993) (same); Luby v. Teamsters
Health, Welfare & Pension Trust Funds, 944 F.2d 1176,
1185 (3d Cir. 1991) (“If the record on review is suffi-
ciently developed, the district court may, in its discretion,
merely conduct a de novo review of the record of the
administrator’s decision.”).
Other factors are also relevant. Courts have sug-
gested, for instance, that the district court may wish to
consider whether the evidence the parties seek to intro-
duce would concern plan terms or historical facts con-
cerning the claimant, whether the plan administrator
faced a conflict of interest and, as Sun Life notes, whether
the parties had a chance to present their evidence in the
ERISA administrative proceeding. Quesinberry, 987 F.2d
at 1027. But no factor is necessarily determinative in
any particular case. The district court must take the
relevant factors into consideration and provide a reason-
able explanation for its decision; so long as it does so, its
decision will be affirmed. Reversals will be rare.
The present case, however, is one of the rare ones. To
begin with, the district court failed to adequately explain
its decision. In making a discretionary decision, a court
must present an explanation for its choice sufficient to
enable a reviewing court to determine that it did not
act thoughtlessly, but instead considered the factors
relevant to its decision and in fact exercised its discretion.
Rivera v. City of Chicago, 469 F.3d 631, 635-36 (7th Cir.
2006); United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005); Vergara-Molina v. INS, 956 F.2d 682, 685
(7th Cir. 1992). The court need not mechanically list
factors or address all the parties’ arguments, but a suffi-
ciently strong argument merits discussion and a review-
ing court cannot conclude that discretion was exercised
No. 05-4765 25
when a strong argument is “passed over in silence.”
Cunningham, 429 F.3d at 679.
That is precisely what happened here. Patton’s argu-
ment for reopening discovery was compelling. It was late
by the terms of the case management order, so Patton
needed an excuse for his tardiness. See, e.g., Rosetto v.
Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000). But
he had one: prior to the Diaz decision, the parties had
not realized that the district court might have authority
to hear additional evidence. The case could clearly have
benefitted from having the gaps in the record filled,
particularly those concerning Dr. Ambrose and his
various communications. Nonetheless, the district court
denied Patton’s motion to reopen discovery without
explanation. Additionally, and distressingly, the court
specifically indicated that it was not at that time deciding
whether de novo review applied to Patton’s claim, and
consequently whether it could hear new evidence. We
cannot conclude that the district court exercised its
discretion when it silently ignored a strong case for
expanding the record while explicitly reserving whether
it even had discretion to exercise. This alone merits a
remand for the court to properly exercise its discretion
with respect to Patton’s motion.
Because the issue is before us, however, we go further:
assuming the district court did exercise its discretion in
refusing to grant Patton’s motion, that discretion was
abused. Generally, it is very hard to say that the district
court abused its discretion in deciding not to hear addi-
tional evidence in an ERISA case. A court should not
automatically admit new evidence whenever it would help
to reach an accurate decision. Any relevant, probative
evidence increases the likelihood of an accurate decision,
but always at the price of increased cost, both in the
form of more money and additional time. See Quesinberry,
987 F.2d at 1023, citing Perry v. Simplicity Engineering,
26 No. 05-4765
900 F.3d 963, 966-67 (6th Cir. 1990). The record calls
for additional evidence only where the benefits of in-
creased accuracy exceed the costs, a balance familiar to the
district court. Cf. Fed. R. Evid. 403; White v. United States,
148 F.3d 787, 791 (7th Cir. 1998); United States v. Pulido,
69 F.3d 192, 204 (7th Cir. 1995).
In the present case, however, it is clear that a relatively
slight expenditure to depose Dr. Ambrose will result in a
unusually high payoff in increased accuracy, because the
case hinges in part on factual determinations which, given
the obscure evidence in the administrative record, are little
better than guesses. A good example of a similar case is
Luby v. Teamsters Health, Welfare & Pension Trust Funds,
944 F.2d 1176 (3d Cir. 1991). The benefits determination
in that case hung on whether the participant in a death
benefit policy had recently signed a card changing his
beneficiary. Surprisingly, the ERISA administrative record
contained no evidence as to what the participant’s signa-
ture looked like other than two cards in the file, each of
which bore differently styled signatures. The plan adminis-
trator guessed—absent additional evidence, there was
nothing else it could have done—that the second signature
was correct and ordered payment to the beneficiary named
on the most recently filed card. Id. at 1179. But in a suit
brought by the other purported beneficiary, the district
court admitted into evidence other samples of the partici-
pant’s signature that closely resembled the first signature,
and concluded that the plan administrator had been
wrong. The appellate court affirmed the decision to take
new evidence because the evidence was needed to provide
adequate information; without it, “[t]here was simply no
evidentiary record for the district court to review.” Id. at
1185.
The record in the present case is similarly configured.
Sun Life chose to credit those of Ambrose’s contradictory
messages most favorable to it. None of the messages
No. 05-4765 27
purported to explain the others, and no party has offered
any extrinsic evidence to explain the contradictions. On
this record, a conclusion as to what Ambrose is even
thinking is little better than a guess. But unlike in Luby,
the district court did not make use of its discretionary
power to hear additional evidence.
Sun Life argues that some factors called for excluding
new evidence (most notably Patton’s opportunity to have
Dr. Ambrose to explain himself at greater length in the
ERISA administrative appeal, assuming that Ambrose
were willing to do so), but those concerns cannot out-
weigh the central one of the unusually glaring gap in the
record which must be filled. The district court chose to
make an arbitrary rather than an informed decision.
III. Conclusion
For the foregoing reasons we reverse the grant of Sun
Life’s motion for summary judgment and reverse the
denial of Patton’s motion to reopen discovery. On remand,
the district court should at least hear additional evidence
from Dr. Ambrose on the nature and basis of his diag-
nosis and the cause of his confusing series of communica-
tions to Sun Life. The court may also, in its discretion,
permit or disallow the introduction of other additional
evidence.
28 No. 05-4765
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-12-07