United States District Court, W.D. Louisiana, Lafayette Division
KENNETH J. LABORDE, M.D.
NORTHWESTERN MUTUAL LIFE INSURANCE CO.
B. WHITEHURST, MAG. JUDGE
G. JAMES, UNITED STATES DISTRICT JUDGE
an action brought by Plaintiff Kenneth J. Laborde, M.D.
(“Laborde”) against his insurer, Defendant
Northwestern Mutual Life Insurance Co.
(“Northwestern”) for breach of contract,
attorney's fees, and statutory penalties pursuant to La.
Rev. Stat. § 22:1821. Laborde, a surgeon, brought suit
after Northwestern denied his application for disability
benefits after he suffered a rotator cuff injury and could no
longer perform hand microsurgery.
before the Court is Northwestern's Motion in
Limine [Doc. No. 32]. Northwestern moves the Court to
exclude from evidence (1) Laborde's claims that
Northwestern breached the insurance contract by failing to
provide disability benefits based on conditions he suffered
after the filing of his Complaint and which were not the
subject of an amended complaint and (2) any expert testimony
by Laborde's accountant. Laborde opposes the motion.
[Doc. No. 38]. Northwestern filed a reply memorandum. [Doc.
following reasons, the Motion in Limine is GRANTED
IN PART and DENIED IN PART.
Claims Not Pleaded in the Complaint
first argues that the Court should exclude from evidence
Laborde's claims that Northwestern breached the insurance
contract by failing to provide disability benefits based on
conditions he suffered after the filing of his Complaint and
which were raised for the first time in his opposition to
Northwestern's Motion for Summary Judgment. Because the
deadline for amending the Complaint passed on March 2, 2017,
Northwestern argues that Laborde cannot add these “new
claims of disability.” [Doc. No. 32, p. 2]. Instead,
Northwestern contends that Laborde should be limited to
arguing that he was/is disabled based on the right rotator
cuff tear that was diagnosed on March 11, 2014.
responds that his Complaint pleads two causes of action: a
breach of contract claim for Northwestern's refusal to
pay disability benefits under several disability insurance
contracts and a claim for penalties and attorney fees under
La. Rev. Stat. § 22:1821 for the alleged bad faith
refusal to pay the benefits under the disability insurance
contracts. Laborde contends that the disability insurance
contracts insured him against any illness or injury which
rendered him disabled in his ability to perform his
occupation as a microsurgeon, and no new claims have been
added. However, following the filing of the Complaint,
Laborde had an accident causing damage to his finger and
developed a heart condition, both of which he contends have
continued his disability, so that he cannot return to
performing microsurgery. Laborde placed Northwestern on
notice of these additional conditions by filing a second
Request for Disability Benefits with Northwestern on June 1,
2016, six days after the Complaint was filed, Northwestern
has conducted discovery, and obtained disclosure regarding
all Laborde's medical conditions.
responds that Laborde pled only one claim: that he is
disabled from performing microsurgery because of his shoulder
condition. Laborde failed to move to amend in a timely manner
to assert claims of later developed disabilities. Therefore,
Northwestern argues that Laborde should not be allowed to
present evidence on the alleged disabilities which were never
included in a complaint or amended complaint.
the pre-trial conference, in response to a question from the
Court, Laborde's counsel expounded on his opposition
memorandum, explaining that Laborde's later developed
conditions have limited the number of general surgeries he
can perform as well as completely preventing him from
the parties apparently contest what constitutes the
“claim” in this case for purposes of amending the
complaint. Northwestern characterizes Laborde's claim as
one for damages based on the denial of disability benefits
for his rotator cuff or shoulder injury. Laborde contends, in
his memorandum, that his claims are for breach of contract
and statutory penalties based on Northwestern's denial of
disability benefits and that his later developed conditions
are merely additional facts of which Northwestern has been
aware and which show that he continues to be unable to return
to his occupation of microsurgery. In the pre-trial
conference, Laborde's counsel expanded this claim to
include Laborde's inability to perform or limitation on
the number of general surgeries he performs as well.
Federal Rule of Civil Procedure 8(a)(2), a [complaint] must
contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.' As the
[Supreme] Court held in [Bell Atlantic Corp. v.]
Twombly, 550 U.S. 544 . . ., the pleading standard Rule
8 announces does not require ‘detailed factual
allegations, ' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing
Twombly, 550 U.S. at 555). In this case, there is no
claim that Laborde failed to meet the requirements of Rule 8
when he initially filed his Complaint.
the issue becomes whether, when, and in what manner Laborde
must move to amend his Complaint when he raises additional
factual allegations and/or changes the legal theory.
Fifth Circuit has explained to this Court, “Under our
precedent, when a claim is raised for the first time in
response to a summary judgment motion, the district court
should construe that claim as a motion to amend the complaint
under Federal Rule of Civil Procedure 15(a).” Riley
v. Sch. Bd. Union Par., 379 F. App'x 335, 341 (5th
Cir. 2010)(citing Stover v. Hattiesburg Pub. Sch.
Dist., 549 F.3d 985, 989 n. 2 (5th Cir. 2008);
Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.
1972)). While this rule is “particularly true” of
pro se litigants, the Fifth Circuit has not limited
its application to unrepresented parties. Id.;
see Sherman, 455 F.2d 1235. Under Rule 15(a), leave
to amend must be “freely given when justice so
requires.” Fed.R.Civ.P. 15(a); see also Foman v.
Davis, 371 U.S. 178, 182 (1962); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994). Rule
15(a) “evinces a bias in favor of granting ...