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May 30, 2002


The opinion of the court was delivered by: William T. Hart, U.S. District Judge


Plaintiff Henry Traum worked as a trader (market maker) at the Chicago Board Options Exchange. In April 1981, Traum obtained a disability income policy (the "Policy") from defendant The Equitable Life Assurance Society of the United States ("Equitable"). During relevant time periods, defendants The Paul Revere Life Insurance Company ("Revere") and UnumProvident Corporation ("Unum"), either directly or through predecessors or affiliates, administered claims for Equitable. Effective October 1, 1993, plaintiff was found to be disabled from performing his occupation based on depression. Effective June 2, 1998, disability payments were discontinued on the ground that plaintiff was again able to perform his occupation. Plaintiff brought the present lawsuit alleging a breach of contract by Equitable in that plaintiff continued to qualify for benefits and also alleging that Equitable's termination of benefits was vexatious and unreasonable in violation of 215 ILCS 5/155. Revere's and Unum's conduct is claimed to be intentional interference with the contract between plaintiff and Equitable. Presently pending are defendants' motions for summary judgment.


On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Schneiker v. Fortis Insurance Co., 200 F.3d 1055, 1057 (7th Cir. 2000); Baron v. City of Highland Park, 195 F.3d 333, 337-38 (7th Cir. 1999). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Wollin v. Gondert, 192 F.3d 616, 621-22 (7th Cir. 1999); Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Shank v. William R. Hague, Inc., 192 F.3d 675, 681 (7th Cir. 1999); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 2324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Devcom Mid-America, Inc., 45 F.2d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104 (1995); Covalt v. Carey Canada Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852 (1988). As the Seventh Circuit has summarized:

The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); id. at 325 ("the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)

Pursuant to Local Rule 56.1(a)(3), the party moving for summary judgment is required to provide a statement of material facts as to which the moving party contends there is no genuine issue. The statement is to be in the form of numbered paragraphs. The nonmovant is to reply to each paragraph, either admitting it is uncontested or stating the nonmovant's disagreement and specifically citing to supporting materials showing there is a genuine factual dispute. Loc. R. 56.1(b)(3)(A). The nonmovant is also to provide a statement of additional facts, if any, that would defeat summary judgment, again in the form of numbered paragraphs with supporting citations. Loc. R. 56.1(b)(3)(B). The moving party may provide a paragraph by paragraph reply to any additional facts submitted by the nonmovant. Loc. R. 56.1(a) (last paragraph). "All material facts set forth in the statement required of the moving party will be deemed to be admitted unless controverted by the statement of the opposing party." Loc. R. 56.1(b)(3)(B). Similarly, all material facts in the nonmovant's Rule 56.1(b)(3)(B) statement "will be deemed admitted unless controverted by the [reply] statement of the moving party." Loc. R. 56.1(a) (last paragraph). Expressing disagreement with a fact contained in the statement of one's opponent without providing a citation to materials supporting that dispute is also a basis for deeming the factual assertions to be true. Garrison v. Burke, 165 F.3d 565, 567 (7th Cir. 1999); Valenti v. Qualex, Inc., 970 F.2d 363, 369 (7th Cir. 1992); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir. 1990). While the district court is permitted to require strict compliance with all the requirements of Local Rule 56.1, strict enforcement is not mandatory. Instead, it is within the court's discretion as to how strictly to apply its own rules. Bordelon v. Chicago School Reform Board of Trustees, 233 F.3d 524, 527 (7th Cir. 2000); Dade v. Sherwin-Williams Co., 128 F.3d 1135, 1140 (7th Cir. 1997); Weeks v. Samsung Heavy Industries Co., 126 F.3d 926, 938 n. 5 (7th Cir. 1997); Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1316-17 (7th Cir. 1995); Schulz v. Serfilco, Ltd., 965 F.2d 516, 519 (7th Cir. 1992); Tan v. City of Chicago, 2001 WL 1012586 *3 (N.D. Ill. Aug. 30, 2001); Ogborn v. United Food and Commercial Workers, Local No. 881, 2000 WL 1409855 *2 (N.D. Ill. Sept. 25, 2000); Gabriel v. City of Chicago, 9 F. Supp.2d 974, 975 n. 2 (N.D. Ill. 1998); United States v. 47 West 644 Route 38, Maple Park, Ill., 962 F. Supp. 1081, 1084 n. 2 (N.D. Ill. 1997).

In responding to defendants' 116-paragraph Rule 56.1(a)(3) statement, plaintiff expressly admits all but 16 of those paragraphs are true. As to the other 16, plaintiff responds that they are unsupported by admissible evidence, contending the cited support is inadmissible hearsay. Plaintiff does not cite to evidence disputing these factual contentions. Plaintiff's Rule 56.1(b)(3)(B) statement, though, is supported by citations to the record. Defendants contend the 16 disputed paragraphs should be deemed admitted because plaintiff does not specifically respond by citing to evidence supporting a genuine factual dispute. Alternatively, defendants contend the evidence they rely upon is admissible.

Defendants must support their asserted facts with citations to evidence that is admissible for summary judgment purposes. To the extent they fail to do so, plaintiff need only point that out; he need not provide his own contrary evidence — except to the extent that he otherwise has the burden to provide evidence supporting an essential element of a claim he makes. See Sanders v. International Union of Operating Engineers, Local 150, 2000 WL 283106 *4 (N.D. Ill. March 8, 2000), aff'd by unpublished order, 2001 WL 436189 (7th Cir. April 26, 2001); Smith v. Gildea, 1998 WL 703677 *6 (N.D. Ill. Sept. 30, 1998); Wagner v. Kester Solder Co., 1995 WL 399484 *4 (N.D. Ill. June 28, 1995); Hill v. Burrell Communications Group Inc., 1994 WL 583296 *2-3 (M.D. Ill. Oct. 20, 1994), modified in part on other grounds, 1995 WL 76881 (N.D. Ill. Feb. 17, 1995), aff'd, 67 F.3d 665 (7th Cir. 1995).

The file is admissible as a business record. See Fed.R.Evid. 803(6). However, that does not make every aspect of the file available for all purposes. To the extent the file is cited to show what information was before defendants or that defendants took certain action as to the claim, it is certainly admissible because it is not being used to show the truth of the matter contained therein or because it is showing defendants' own conduct through their own business records. See United States v. Hershenow, 680 F.2d 847, 861 n. 12 (1st Cir. 1982); United States v. Universal Rehabilitation Services, Inc., 1996 WL 297575 *12 (E.D. Pa. May 31, 1996), aff'd, 205 F.3d 657 (3d Cir. 2000). However, to the extent defendants rely on third party statements or documents to show the truth of the matters contained therein, such evidence is not admissible unless an additional basis for admission exists. Woods v. City of Chicago, 234 F.3d 979, 986 (7th Cir. 2000), cert. denied, 122 S.Ct. 354 (2001); Datamatic Services, Inc. v. United States, 909 F.2d 1029, 1033 (7th Cir. 1990); Johnson v. Herman, 132 F. Supp.2d 1130, 1133 (N.D. Ind. 2001; State Farm Mutual Automobile Insurance Co. v. Abrams, 2000 WL 574466 *3-4 (N.D. Ill. May 11, 2000); Jones v. Board of Trustees of Community College District No. 508, 75 F. Supp.2d 885, 889 (N.D. Ill. 1999). One possibility is that the evidence would be admissible under another hearsay exception. See United States v. Emenogha, 1 F.3d 473, 483-84 (7th Cir. 1993), cert. denied, 510 U.S. 1080 (1994); Datamatic, 909 F.2d at 1133; Abrams, 2000 WL 574466 at *3. Another possibility is that the third-party statement or document will have adequate sources of corroboration to deem it admissible.*fn1 See Emenogha, 1 F.3d at 484; United States v. Vigneau, 187 F.3d 70, 77 & n. 6 (1st Cir. 1999), cert. denied, 528 U.S. 1172 (2000). See also United States v. Sokolow, 91 F.3d 396, 403 (3d Cir. 1996), cert. denied, 519 U.S. 1116 (1997) (quoting United States v. McIntyre, 997 F.2d 687, 700 (10th Cir. 1993), cert. denied, 510 U.S. 1063 (1994)) ("if the business entity has adequate verification or other assurance of accuracy of the information provided by the outside person").

Many of the objected to fact statements contain evaluations by defendants' own agents, representatives, or in-house consultants. These are not statements or documents of third parties and are properly considered as business records, not must to show actions taken by defendants or information before defendants, but also as proof of medical determinations made by the consultants. To the extent any of the business records relied upon by defendants are from outside doctors, those doctors' medical reports must be adequately authenticated. See Renaldi v. Sears Roebuck & Co., 2001 WL 290374 *7 (N.D. Ill. March 21, 2001); Russell v. Mounsey, 1998 WL 456434 *1 (N.D. Ind. April 24, 1998); Burrell v. Fairman, 1992 WL 233909 *1 (N.D. Ill. Sept. 15, 1992). Plaintiff also objects to statements attributed to him that are contained in his claim file. The claim file is admissible evidence to show he made the statements to defendants' employees and the statements are thus admissible as admissions of a party opponent. See Fed.R.Civ.P. 801(d)(2); Emenogha, 1 F.3d at 484; EEOC v. SWP, Inc., 153 F. Supp.2d 911, 914 n. 1 (N.D. Ind. 2001).


The aforestated principles will be applied in determining the facts that are deemed to be true for purposes of ruling on defendants' motions for summary judgment. In general, plaintiff's objections are without merit. Additionally, although plaintiff does not specifically cite to contrary evidence in his objections to defendants' fact statements, to the extent plaintiff's statement of additional facts contains adequately supported contrary facts, a genuine factual dispute will be found to exist. Drawing all reasonable inferences and resolving all genuine factual disputes in plaintiff's favor, the facts assumed to be true for purposes of defendants' motions for summary judgment are as follows.

On April 15, 1981, Equitable issued the Policy to plaintiff, who was born in 1948. The Policy provides a lifetime monthly payment if, prior to age 50, plaintiff has a total disability resulting from sickness. Under the Policy, "Total disability means the inability of the Insured, because of injury or sickness, to engage in the Insured's regular occupation, provided, however, that the total disability will not be considered to exist for any period during which the Insured is not under the regular care and attendance of a physician except in cases of presumptive total disability." On his application for insurance, plaintiff listed his occupation as "market maker," and that apparently continued to be his occupation until he applied for disability. On his initial claim for disability benefits, plaintiff identifies his occupation as "trader," but includes setting market prices as one of his activities. The other listed activities are analysis of markets/risk; determine whether buying or selling; initiate trades for my own account; monitor positions; and exit transactions. On his initial claim form, plaintiff claimed that stress prevented him from performing all these tasks except the analysis and monitoring.

On September 13, 1993, plaintiff submitted an initial claim for disability benefits accompanied by a statement from attending physician Thomas Stern, M.D., an internist, diagnosing major depression and obsessive compulsive disorder beginning September 1, 1993. Stern stated that with "a good response to therapy and medication, [plaintiff] could potentially return to previous work in 6 months." Following receipt of an authorization from plaintiff, on October 21, 1993, Equitable*fn2 requested that Dr. Stern complete a psychiatric assessment form. The next day, before receiving the assessment, Equitable issued the initial benefit payment for the month commencing October 1.

Dr. Stern submitted an assessment dated November 16, 1993. He opined that plaintiff was totally disabled from his occupation, but that plaintiff could work part-time in any other job immediately, and part-time in his occupation beginning January 1, 1994. Dr. Stern indicated plaintiff's response to prescribed medication was "good so far" and that his response to treatment was "progressive but slow improvement."

On December 10, 1993, "Christy" in the Claims Department asked in-house medical consultant Dr. Berc whether an independent medical examination ("IME") was advisable. On December 16, 1993, Dr. Berc responded that an IME, including psychological testing, should be performed to clarify cognitive processes. Under the terms of the Policy, Equitable could, within reason, require IME's when and as often as it desired.

Plaintiff was referred to psychiatrist James Patras for an IME. On February 17, 1994, Dr. Patras examined plaintiff and thereafter issued a report dated March 7, 1994. As part of this examination, clinical psychologist Peter Newman, Ph.D., performed a neuropsychological examination. Newman found that plaintiff had major depression, presented a risk of suicide, and that the disability claim appeared to be valid. It was Dr. Patras's opinion that plaintiff was totally disabled, including unable to perform his duties as a trader. He also reported that it was possible that, with regular treatment by a psychiatrist, plaintiff's condition could improve to the point that he could return to his regular occupation.

On February 25, 1994, Equitable advised plaintiff that, under the terms of the Policy, he was not required to pay premiums while disabled. It refunded some premiums that had been paid during the period of disability.

In a memorandum dated April 5, 1994, Dr. Berc stated the reports of Dr. Patras and Newman lacked the detail necessary to conclude that plaintiff was disabled. He recommended that more detailed examinations and reports be obtained. In a June 24, 1994 memorandum to the Claims Department, psychologist David McDowell, Ph.D., an in-house consultant, questioned the adequacy of conclusions reached by Patras and Newman, as well as internist Stern's qualifications to diagnose and evaluate psychiatric disorders. McDowell recommended rehabilitative services designed to return plaintiff to work and an IME by a rehabilitative or disability specialist if the rehabilitative services were not likely to be effective.

In early August 1994, Equitable Field Representative Steve Page interviewed plaintiff and also obtained information from Dr. Stern. Plaintiff told Page that his condition continued to improve and that he was feeling much better. Plaintiff also stated that he was taken off anti-depressant medication in July and that it was hoped he would improve without a need for medication. Plaintiff expressed the opinion that treatment by a psychologist*fn3 and internist was sufficient, that he did not need to see a psychiatrist. ...

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