Clay v. Life Insurance Company of North America, Trustee of the Group Insurance Trust for the Employers in the Finance, Insurance and Real Estate Industry
Filing
21
MEMORANDUM AND ORDER 17 MOTION for Summary Judgment, 16 MOTION for Summary Judgment and Brief in Support.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CONNIE CLAY, GUARDIAN OF THE
ESTATE OF JOSHUA WADE BALL, A
MINOR,
§
§
§
§
Plaintiff,
§
§
v.
§ CIVIL ACTION NO. H-10-cv-4961
§
LIFE INSURANCE COMPANY OF
§
NORTH AMERICA, TRUSTEE OF THE §
GROUP INSURANCE TRUST FOR THE §
§
EMPLOYERS IN THE FINANCE
§
INSURANCE AND REAL ESTATE
§
INDUSTRY,
§
Defendant.
§
MEMORANDUM AND ORDER
Pending before the Court are Defendant’s Motion for Summary Judgment (Doc. No. 16)
and Plaintiff’s Motion for Summary Judgment (Doc. No. 17). After considering the motions, all
responses thereto, and the applicable law, the Court finds that Defendant’s Motion should be
granted and Plaintiff’s Motion should be denied.
I. BACKGROUND
This action involves the denial of a claim for basic and supplemental accidental death
benefits under a policy governed by the Employee Retirement Employment Retirement Income
Security Act (“ERISA”) and administered by Defendant Life Insurance Company of North
America (“LINA”). Plaintiff Connie Clay brings this action on behalf of her minor son, Joshua
Wade Ball, for wrongful denial of benefits under § 1132 of ERISA. 29 U.S.C. § 1132. Joshua’s
father, Gregory R. Ball, was employed by Realogy, who maintained a life and accident insurance
policy through Defendant for its employees. By virtue of his employment with Realogy, Mr.
1
Ball was enrolled in Group Accident Policy No. OK-980070 through Defendant, which provided
him with $75,000 in basic accident insurance benefits in the event of a covered accident.
(Administrative R., Doc. No. 15, at 6.) Mr. Ball also applied for a supplemental policy that
would provide an additional $250,000 in accident insurance benefits. (Id.)
A. Mr. Ball’s Death and Subsequent Investigations
Mr. Ball was found floating on his back in a swimming pool at 12:33 p.m. on October 13,
2007. (Id. at 147–49.) He was 48 years old. (Id. at 148.) The witness who first found Mr. Ball
called police and EMS, who arrived on the scene shortly thereafter and pulled him out of the
pool to attempt CPR. Mr. Ball was transported to the hospital in an ambulance, and he was
pronounced dead shortly after arriving, at 1:19 p.m. (Id. at 149.)
The officer noted that there were no signs of struggle at the scene and no signs of trauma
to Mr. Ball. (Id. at 148.) The swimming pool was only 5 feet deep at its deepest point, and Mr.
Ball was approximately 5’10”, according to the police report.1 (Id.) The ambulance crew’s
records also indicated that Mr. Ball’s blood sugar level was at 24 when they arrived at the scene,
which required the paramedics to administer D50 (dextrose). (Id. at 199–200.)
The Harris County Medical Examiner’s Office performed an autopsy on October 14,
2007, determining that the cause of death was “drowning” and the manner of death was
“accident.” (Id. at 39.) Hypertensive and atherosclerotic cardiovascular disease and diabetes
mellitus are listed as “contributory causes” of the death. (Id.) The report notes that his heart
weighed 490 grams. (Id. at 42.) The right coronary artery had atherosclerotic stenosis of
approximately 60 percent, and the left coronary artery had atherosclerotic stenosis of
approximately 40 percent in the anterior descending branch and 80 percent in the circumflex
1
The autopsy noted that he was 5’7”. (Administrative R. at 40.) Plaintiff did not challenge Defendant’s decision,
either in her motion or in her appeal at the administrative level, on the basis that Mr. Ball was not tall enough to
stand in the pool.
2
branch. (Id.) The report also noted a “[h]istory of recent alcohol ingestion, with blood alcohol
level below detectable limits of toxicologic testing.” (Id. at 44.) A separate blood sample
analysis showed less than .10 mg/L of benzoylecgonine, a cocaine metabolite. (Id. at 46.)
An amendment to the Certificate of Death was certified on March 6, 2008, after the
autopsy report was finalized. (Id. at 37.) It adopted the findings of the medical examiner, noting
the “immediate cause of death” as “drowning” and listing “other significant conditions
contributing to death” as “Hypertensive and Atherosclerotic Cardiovascular Disease; Diabetes
Mellitus.” (Id.)
B. Policy Provisions
The Accident Policy defines a “Covered Accident” as:
A sudden, unforeseeable, external event that results, directly and independently of all
other causes, in a Covered Injury or Covered Loss and meets all of the following
conditions:
1. occurs while the Covered Person is insured under this Policy;
2. is not contributed by disease, Sickness2, mental or bodily infirmity;
3. is not otherwise excluded under the terms of this Policy.
(Id. at 643.) The Policy also states that benefits will not be paid for any loss “which, directly, or
indirectly, in whole or in part, is caused by or results from . . . 7. Sickness, disease, bodily or
mental infirmity . . . [or] 11. voluntary ingestion of any narcotic, drug, poison, gas or fumes,
unless prescribed or taken under the direction of a Physician and taken in accordance with the
prescribed dosage.” (Id. at 647.)
C. Initial Denial of Benefits
A human resources associate with Mr. Ball’s former employer forwarded Plaintiff’s
claim for life and accidental death insurance benefits to Defendant on October 18, 2007. (Id. at
2
Presumably, the word “Sickness” is defined in the policy, as it is capitalized each time it is used. However, the
Administrative Record filed as Doc. No. 15 is missing page 16 of the policy, which is where “Sickness” may be
defined. (See Doc. No. 15 at 644–45.) Because Plaintiff does not challenge Defendant’s ruling on this basis,
however, the Court need not address it.
3
623.) On October 31, 2007, a LINA life claim specialist explained to Plaintiff’s attorney that
Defendant could not process Plaintiff’s claim until Defendant received the death certificate. (Id.
at 609.) Plaintiff’s attorney forwarded the death certificate to Defendant on May 1, 2008. (Id.
581–84.) Defendant’s accident claim specialist on this case also requested copies of the police
report, EMS report, attending physician’s report, autopsy report, microscopic examination report,
and toxicology report from various sources. (Id. at 485, 494, 499–525, 537–51, 561–68, 570–75,
578, 580.)
Defendant referred the case to an internal physician advisor, Dr. R. Norton Hall. On
August 28, 2008, Dr. Hall concluded that the records failed to clarify the cause of death. (Id. at
481–82.) Subsequently, on September 4, 2008, Dr. Hall wrote another report stating that the
“medical review reveals the insured suffered a severe hypoglycemia of .24 mg as found by EMS
responders. This level would at least produce unconsciousness or even death.” (Id. at 479.)
Defendant then referred the file to independent forensic pathologist Dr. J. Scott Denton
on September 12, 2008. (Id. at 477.) Dr. Denton found that Mr. Ball became unresponsive from
heart disease while in the swimming pool, noting the findings of the autopsy with relation to the
Mr. Ball’s enlarged heart, atherosclerotic stenosis, and the pallor of the myocardial papillary
muscle. (Id. at 474.) He found that the weight of the heart, at 490 grams, is just below the
critical 500-gram weight, known to cause sudden death without any contributing factors. (Id.)
According to Dr. Denton’s report, the increased cardiac muscle mass requires more oxygenation
during work, but the blocked coronary arteries prevent efficient delivery of oxygenated blood to
this myocardium, which can cause sudden death. (Id.) Additionally, he noted the cocaine
metabolites in Mr. Ball’s blood, and indicated that cocaine use can cause sudden cardiac death
with someone with Mr. Ball’s heart conditions.
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(Id.) Dr. Denton concluded that “severe
coronary atherosclerosis, enlargement of his heart from hypertension, and cocaine intoxication[]
are the most likely cause of his sudden cardiac arrest and becoming unresponsive in the pool.”
(Id.)
Citing the evidence reviewed and Dr. Denton’s findings, Defendant denied Plaintiff’s
claim for accidental death benefits on October 20, 2008, and notified her of her right to appeal
this decision. (Id. at 451–58.)
D. Defendant’s Denial of the Appeal
Plaintiff appealed Defendant’s decision on October 9, 2009. (Id. at 288–309.) She cited
an attached report by a consulting pathologist, Dr. Paul Redelat, who found that petechial
hemorrhages around Mr. Ball’s eyes indicated breath-holding prior to drowning, rather than
sudden death by myocardial infarction.
(Id. at 295–96, 311–12.)
Dr. Redelat found it
unsurprising that no water was found in the lungs, as it can move rapidly into the bloodstream in
drowning deaths, and also found the water in Mr. Ball’s stomach to be consistent with a gulping
action when he was holding his breath. (Id.) He also noted that the post-mortem examination
“in no way supports the disingenuous allegation of ‘cocaine intoxication’ since this metabolite
lingers in the body long after the active principle of cocaine has been degraded.” (Id.) “The role
played by the pre-existing coronary atherosclerosis is difficult to assess and, in my opinion,
remains entirely speculative.” (Id.)
Plaintiff also provided a transcript of the sworn testimony of Dr. Luisa Florez, who
performed the autopsy. (Id. at 296–305; 319–63.) Dr. Florez believed that there was no
evidence that Mr. Ball experienced an acute myocardial infarction, as she did not see any
microscopic signs of necrosis in the heart tissue, which she would expect to see with an acute
infarction. (Id. at 297, 333–34.) She confirmed that the fact that the report lists “Contributory
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Causes” as “[h]ypertensive and atherosclerotic cardiovascular disease and diabetes mellitus”
does not mean those conditions contributed to the drowning in any way. (Id. at 301, 344–46.)
Rather, the diagnosis of drowning is one of exclusion with no consistent pathologic findings,
because Dr. Florez could not say that he in fact had an infarct while underwater. (Id. at 345.)
Defendant asked an independent toxicologist, Dr. Fred Fochtman, to analyze the level of
cocaine metabolite benzoylecgonine found in Mr. Ball’s blood. (Id. at 36.) He noted that
chronic cocaine use can cause myocardial tissue damage. (Id. at 32.)
An independent cardiologist, Dr. Paul W. Sweeney, also looked at the record at
Defendant’s request to determine whether Mr. Ball’s cardiac condition contributed to his death.
He found that the autopsy report and testimony of Dr. Florez strongly suggested that Mr. Ball
had “severe cardiac disease” and most likely died as a result of a sudden death due to cardiac
dysrhythmia. (Id. at 29.) Dr. Florez herself noted that Mr. Ball had suffered at least one prior
myocardial infarction, no less than one month prior to his death. (Id.) He stated that the
diagnosis of drowning was incomplete, as it does not explain how Mr. Ball could have drowned
in a pool that was only 5 feet deep. (Id. at 30.)
Defendant also forwarded Plaintiff’s appeal to Dr. Denton, who supplemented his
conclusions. He concluded that Plaintiff’s consultants failed to provide an explanation for “why
an otherwise outwardly healthy 48 year old man, without any injuries who can swim, drowns in a
pool when he could easily stand up to prevent such an occurrence.” (Id. at 23.) He stated that,
“[t]o a reasonable degree of medical certainty[,] Mr. Ball suffered a medical event, mostly likely
an arrhythmia from his severe coronary atherosclerosis, or a ‘heart attack’ while swimming.”
(Id.) The report refuted Plaintiff’s primary arguments. Dr. Denton contested the opinion of Dr.
Redelat, saying that this concept of “dry drowning” is not proven in forensic pathology literature,
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and the absence of water found in his airways or lungs is better explained by a sudden cardiac
arrhythmia causing Mr. Ball to become unconscious and unable to stand and support himself in
the water. (Id. at 24.) Additionally, he stated that “[i]t is well known and taught in basic
pathology text books that the signs of heart muscle necrosis or myocardial damage with
inflammation from severe coronary atherosclerosis causing a ‘heart attack’ requires at least 6 to
12 hours of survival in the alive patient to manifest grossly or microscopically at autopsy.” (Id.)
As Mr. Ball did not survive minutes beyond his cardiac arrest, it was unsurprising that Dr. Florez
did not see microscopic signs of necrosis in the heart tissue. (Id.) Dr. Denton also stated the
presence of the parent drug cocaine in the blood is not necessary for a finding of cocaine
intoxication;
cocaine
readily
spontaneously
hydrolyzes
to
the
breakdown
product
benzoylecgonine even after death. (Id.)
On November 19, 2009, Defendant denied Plaintiff’s appeal and upheld its previous
denial based on the Policy’s definition of “covered loss” and exclusions for losses caused
directly or indirectly, in whole or in part, from “Sickness, disease, bodily or mental infirmity”
and “voluntary ingestion of any narcotic.” (Id. at 10–17.) Ms. Clay then filed suit in this Court
for wrongful denial of benefits under § 1132 of ERISA.
II. LEGAL STANDARD
A. Summary Judgment Standard
A motion for summary judgment requires the Court to determine whether the moving
party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed. R.
Civ. P. 56(c).
Summary judgment is proper
“if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
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of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001) (quotations omitted). A
genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving
party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000).
The Court views all evidence in the light most favorable to the non-moving party and
draws all reasonable inferences in that party’s favor. Id. “[T]he court should give credence to
the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that
is uncontradicted and unimpeached, at least to the extent that that evidence comes from
disinterested witnesses.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
The Court may not make credibility determinations or weigh the evidence. Harvill v. Westward
Communications, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005). Hearsay, conclusory allegations,
unsubstantiated assertions, and unsupported speculation are not competent summary judgment
evidence. Fed. R. Civ. P. 56(e)(1); see, e.g., McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.
2008); Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); see also Little v. Liquid Air Corp.,
37 F.3d 1069, 1975 (5th Cir. 1994) (noting that a non-movant’s burden is “not satisfied with
‘some metaphysical doubt as to the material facts’”) (citing Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Additionally, any ”affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4).
B. Abuse of Discretion Review
If an ERISA plan gives an administrator discretionary authority to determine eligibility
for benefits or to construe the terms of the plan,3 the Court reviews the administrator’s factual
3
Parties do not dispute that the Plan gave the Plan Administrator discretion to determine eligibility for benefits and
to construe the terms of the plan. (See Def.’s Mot. at 13; Pl.’s Mot. at 5.)
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determinations and construction of plan terms for abuse of discretion. See Firestone Tire and
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Wade v. Hewlett-Packard Development Co. LP
Short Term Disability Plan, 493 F.3d 533, 540-41 (5th Cir. 2007), abrogated on other grounds
by Hardt v. Reliance Standard Life Ins. Co, --- U.S. ----, 130 S. Ct. 2149, 2157–58 (2010).
“Abuse of discretion is synonymous with the arbitrary and capricious standard.” Wade, 493 F.3d
at 540; Vega v. National Life Ins. Services, Inc., 188 F.3d 287, 298 (5th Cir. 1999). The Court
must “focus on whether the record adequately supports the administrator’s decision.” Vega, 188
F.3d at 298. “To avoid reversal in the summary judgment context, the Administrator’s decision
must be supported by substantial evidence in the administrative record, which is evidence that a
reasonable mind might accept as sufficient to support a conclusion.” Wade, 493 F.3d at 541
(citing High v. E-Systems, Inc., 459 F.3d 573, 576 (5th Cir. 2006)); see also Corry v. Liberty Life
Assur. Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (“Substantial evidence is more than a
scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”). A decision is arbitrary “only if ‘made without a
rational connection between the known facts and the decision or between the found facts and the
evidence.’” Meditrust Financial Services Corp. v. Sterling Chemicals, Inc., 168 F.3d 211, 215
(5th Cir. 1999) (citing Bellaire General Hospital v. Blue Cross Blue Shield, 97 F.3d 822, 828–29
(5th Cir. 1996)). A claim must be upheld so long as it was “based on evidence, even if
disputable, that clearly supports the basis for its denial.” Lain v. UNUM Life Ins. Co., 279 F.3d
337, 342 (5th Cir. 2002), abrogated on other grounds by Metropolitan Life Ins. Co. v. Glenn,
554 U.S. 105 (2008) (quoting Vega, 188 F.3d at 299).
Where there is evidence that the administrator acted under a conflict of interest, the Court
must “weigh the conflict of interest as a ‘factor in determining whether there is an abuse of
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discretion’ in the benefits denial.” Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008)
(quoting Glenn, 554 U.S at 115). A plan administrator that “both evaluates claims for benefits
and pays benefits claims” creates a structural conflict of interest that the Court must take into
account in determining whether the administrator’s actions were an abuse of discretion. Glenn,
544 U.S. at 112. However, “[i]f claimants do not present evidence of the degree of the conflict,
the court will generally find that any conflict is ‘not a significant factor.’” McDonald v. Hartford
Life Group Ins. Co., 361 Fed. Appx. 599, 608 (5th Cir. 2010) (quoting Holland v. International
Paper Co. Retirement Plan, 576 F.3d 240, 249 (5th Cir. 2009)).
Additionally, consulting
physicians cannot be considered inherently biased based solely on their employment with a
contracting agency. McDonald, 361 Fed. Appx. at 609; Sweatman v. Commercial Union Ins.
Co., 39 F.3d 594, 601 n.14 (5th Cir. 1994).
III. ANALYSIS
Plaintiff does not contend that Defendant’s interpretation of the relevant plan language
was legally incorrect.4 Instead, Plaintiff argues that Defendants’ factual determination of the
contributing causes of Mr. Ball’s death was arbitrary and capricious, and thus that Defendant was
incorrect in determining that Mr. Ball’s death was not due to a “covered accident.” “[T]he
question of the cause of death [is] a factual determination.” Dutka ex rel. Estate of T.M. v. AIG
Life Ins. Co., 573 F.3d 210, 213 (5th Cir. 2009).
4
While Plaintiff states that “LINA’s interpretation of the meaning of ‘contributing’ in reference to a covered
accident is arbitrary and capricious, or in the alternative, ambiguous” (Resp. to Def.’s Mot. at 4), it does not appear
that Plaintiff actually disagrees with Defendant’s interpretation of the word “contributing.” Plaintiff’s only
argument is that the diseases or injuries listed on the death certificate as “contributory causes” cannot automatically
be said to have “contributed” to his death. However, as noted above in the statement of facts, Defendant did not rely
solely on the list of contributory causes in making this determination; it enlisted the help of many physicians to
determine whether Mr. Ball’s heart condition, diabetes, or cocaine use contributed to his death. Moreover, the
causal link required under the policy is very loose; Defendant may deny a claim for an incident “which, directly, or
indirectly, in whole or in part, is caused by or results from . . . 7. Sickness, disease, bodily or mental infirmity . . .
[or] 11. voluntary ingestion of any narcotic, drug, poison, gas or fumes, unless prescribed or taken under the
direction of a Physician and taken in accordance with the prescribed dosage.” (Administrative R. at 647.)
10
The evidence, outlined above, shows that Defendant primarily relied on the opinions of
Dr. Denton, Dr. Sweeney, and Dr. Focthman in determining that “Mr. Ball suffered a medical
event, which occurred due to his medical conditions as well as his recent cocaine use.”
(Administrative R. at 15.) Defendant also reviewed the appeal submitted by Plaintiff, including
her consulting physicians, and other reports prepared about the incident. Defendant did not
“arbitrarily refuse to credit a claimant's reliable evidence”; its consulting physicians expressly
considered, and rejected, the medical opinions offered by Plaintiff through Dr. Radelat and Dr.
Florez. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). As explained above,
the physicians that Defendant credited described why Mr. Ball’s death may have been caused by
cocaine use, despite the absence of the parent drug cocaine in his blood sample. They drew
conclusions different from Dr. Florez’s observations about Mr. Ball’s heart, and contested her
testimony that she would expect to see microscopic signs of necrosis in the heart tissue even in
someone who had died minutes after a myocardial infarction. Dr. Denton also contested Dr.
Redelat’s theory of “dry drowning,” stating that the absence of water found in his airways or
lungs is better explained by a sudden cardiac arrhythmia. Dr. Sweeney noted that Dr. Florez’s
diagnosis of “drowning” is one of exclusion with no consistent pathologic findings.
Dr. Florez’s testimony was not due more weight because she was the physician who
examined Mr. Ball. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003
(“[C]ourts have no warrant to require administrators automatically to accord special weight to
the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete
burden of explanation when they credit reliable evidence that conflicts with a treating physician's
evaluation.”); Gooden v. Provident Life & Accident Ins., Co., 250 F.3d 329, 335 (5th Cir. 2001)
(holding that the plan administrator did not abuse its discretion by relying upon the assessment of
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a physician who had not examined the plaintiff, as the plaintiff’s condition could be verified
from the objective medical information). Defendant was faced with competing testimony—Dr.
Florez stated that she could rule out a myocardial infarction with a reasonable degree of medical
certainty (Administrative R. at 352–53), while Dr. Denton believed, to a reasonable degree of
medical certainty, that “Mr. Ball suffered a medical event, most likely an arrhythmia from his
severe coronary atherosclerosis.” (Id. at 23.) Dr. Sweeney agreed with Dr. Denton. It was not
an abuse of discretion to credit these physicians after considering Dr. Florez’s and Dr. Redelat’s
testimony. See, e.g., Corry, 499 F.3d at 401 (noting that an administrator “is vested with
discretion to choose one [expert] over the other.”); Gothard v. Metropolitan Life Ins. Co., 491
F.3d 246, 249–50 (5th Cir. 2007) (“[P]lan fiduciaries are allowed to adopt one of two competing
medical views . . . .”). Plaintiff asks the Court to do precisely what it cannot under its limited
review—rely only “on the death certificate signed by the Medical Examiner, the autopsy, the
toxicology reports and the testimony of the pathologist who performed the autopsy.” (Pl.’s Mot.
at 15.)
Moreover, Plaintiff has provided no evidence of an actual, as opposed to a structural,
conflict of interest of either Defendant or its consulting physicians. Unlike Glenn, Plaintiff has
presented no evidence that Defendant took “inconsistent positions [that] were . . . financially
advantageous” and otherwise failed to consider and provide its experts with relevant evidence.
Glenn, 554 U.S. at 118. Accordingly, the Court finds that this conflict is “not a significant
factor,” and it does not change the Court’s determination that Defendant’s decision did not
constitute an abuse of discretion. McDonald, 361 Fed. Appx. at 608.
The Court finds, therefore, that Defendant’s determination that Mr. Ball’s death was not a
“covered accident” did not constitute an abuse of discretion. There was a choice to be made
12
based on the evidence presented, and Defendant was entitled to rely on the opinion of its
consulting physicians. Defendant need not have evidence that “the heart attack was the probable
cause of [Mr. Ball’s] death”; its decision “need only evince a ‘rational connection between the
known facts and the decision.’” Brown v. PFL Life Ins. Co., 111 Fed. Appx. 258, 261 (5th Cir.
2004) (quoting Lain, 279 F.3d at 342).
Defendant’s conclusion “fall[s] somewhere on a
continuum of reasonableness—even if on the low end.” Corry, 499 F.3d at 398 (citation and
internal quotations omitted).
IV.
CONCLUSION
For the reasons stated in this order, Defendant’s Motion is GRANTED, and Plaintiff’s
Motion is DENIED.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 23rd day of March, 2012.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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