Kidd v. Cigna Corp. D/b/a Cigna Group Ins.
| Decision Date | 12 November 2010 |
| Docket Number | No. 3:10-0020,3:10-0020 |
| Parties | JENNIFER KIDD, Plaintiff, v. CIGNA CORPORATION d/b/a CIGNA GROUP INSURANCE, PHOTOFAX, INC., CHRIS ISENHART, Individually, and SELECT PHYSICAL THERAPY HOLDINGS, INC. d/b/a SELECT PHYSICAL THERAPY, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
This invasion of privacy case arose after Plaintiff, Dr. Jennifer Kidd ("Dr. Kidd"), was secretly videotaped undergoing a Functional Capacity Evaluation ("FCE") related to her receipt of Long-Term Disability ("LTD") benefits. Pending before the Court are several motions, including summary judgment motions filed by Defendants Photofax, Inc. ("Photofax") and Chris Isenhart ("Mr. Isenhart") (Docket No. 32), Defendant Select Physical Therapy Holdings Inc. d/b/a Select Physical Therapy ("Select") (Docket No. 37), and Defendant CIGNA Corporation d/b/a CIGNA Group Insurance ("CIGNA") (Docket No. 41). Also pending is a Motion to Dismiss filed by CIGNA (Docket No. 44), as well as Dr. Kidd's Motion to Amend Complaint (Docket No. 77). Finally, Dr. Kidd has filed a Motion for Review of Magistrate Judge's Order (Docket No. 55). With the exception of Select's Motion for Summary Judgment which Dr. Kidd has not opposed, those motions have been fully briefed by the parties.
Dr. Kidd is an anesthesiologist who formerly practiced with Anesthesia Medical Group, P.C. in Nashville, Tennessee. She allegedly can no longer work in that capacity as a result of being diagnosed with Complex Regional Pain Syndrome.
On September 20, 2007, Dr. Kidd applied for LTD benefits from Life Insurance Company of North America ("LINA"), a CIGNA subsidiary. After an initial denial, Dr. Kidd's benefit claim was approved in November 2008 for the period from February 8, 2008 to December 31, 2008. At the time of approval, Dr. Kidd was notified that she would be required to participate in an FCE to reassess her right to continue receiving LTD benefits. The FCE was scheduled for January 8 and 9, 2009, at Select's clinic located at 5515 Edmonson Pike in Nashville, Tennessee.
Select's physical therapy facility on Edmonson Pike is in a strip mall and fronts a parking lot. It has three exterior windows from which one can see into the building from the sidewalk or parking lot. Likewise, those inside the building can look out and see the parking lot, as well as an office building which sits to one side, and across the street.
On the scheduled dates, Dr. Kidd participated in an FCE conducted by Select's Center Manager, Catherine Byrd ("Ms. Byrd").1 Also present, and supervising Ms. Byrd, was Felisa T. Odle ("Ms. Odle"), Select's Manager of Clinical Operations.2
During the FCE, Dr. Kidd performed several activities, including lifting five pound weights, walking on a treadmill, and climbing some steps. She also stooped, crouched, and crawled, used various lever devices, put together wooden puzzles, placed wooden pegs into holes, and fished marbles and pinto beans out of a box of rice. A couple of the activities (such as lifting weights and walking on the treadmill) are the same sort of activities which Dr. Kidd undertakes in full view of others while working out at her local YMCA several days a week.
Some, but not all, of Dr. Kidd's actions could be seen through one or more of the windows of the building. Dr. Kidd did not ask anyone to cover the windows, or otherwise block her from view. According to Dr. Kidd, she did not know that anyonone could see into the examination area from outside the building because medical facilities typically utilize one-way glass to protect patients from being seen from outside. She further claims that it never entered her mind that anyone would attempt to watch her from outside the facility.
Unbeknownst to Dr. Kidd, her FCE was videotaped from the parking lot by Mr. Isenhart who works for Photofax. Photofax conducts surveillance and investigations, and was hired by LINA to conduct video surveillance on Dr. Kidd in January 2009.3
Photofax's surveillance request form indicates CIGNA wanted Dr. Kidd surveilled from January 7 to 10, 2009, and specifically noted that Dr. Kidd was scheduled for her FCE on January 8 and 9, 2009, at Select's facility on Edmonson Pike. Jennifer Holder ("Ms. Holder"), a CIGNA fraud investigator who actually works for LINA, made the surveillance request.
Ms. Holder testified in her deposition that the dates selected for surveillance corresponded with the FCE because it was clear that Dr. Kidd would be leaving her home to attend the sessions.
Ms. Holder also indicated that she understood the FCE might be videotaped if it could be seen from a public place because CIGNA wanted to get "any activity" that could be videotaped. (Holder Depo. at 27-28). Indeed, according to Ms. Holder, it is standard practice for CIGNA to have investigators film both medical examinations and FCEs, if possible. (Holder Depo. at 10).4
As requested, Mr. Isenhart conducted surveillance on Dr. Kidd from January 7 to January 10, 2009. The video surveillance included images of cars traversing the road in front of Dr. Kidd's residence, Dr. Kidd outside of a Starbucks coffee shop, inside and outside a TJ Maxx store, carrying a shopping bag, getting in and out of her car, and driving.
As for the filiming of the FCE, Mr. Isenhart followed Dr. Kidd from her home to Select on both days of the FCE. Both he and she parked in the parking lot. Mr. Isenhart captured Dr. Kidd on film walking into Select and then videotaped her inside the facility from his parked car. The video images do not include the entirety of the examinations, all of Dr. Kidd's movements, or all her body.5 The videotape contains no sound, no written description of events, and captures only that which could be seen by anyone looking into the window from the parking lot, although the film is enhanced at parts due to Mr. Isenhart's use of a zoom lens.
For the four day period of surveillance, Mr. Isenhart compiled 57 minutes of videotape. He submitted the tape and a written report to Ms. Holder. In his written report, Mr. Isenhart noted that Dr. Kidd was being surveilled because CIGNA wanted to know her "current level of daily activity, " and that Dr. Kidd "reportedly suffers from Reflex Sympathetic Dystrophy." (Isenhart Depo. Ex. 4, Docket No. 41-3 at 2).
Dr. Kidd did not learn about the video surveillance until her attorney requested records from CIGNA in the Spring of 2009, after her claim for benefits had again been denied. Dr. Kidd admittedly expected CIGNA to conduct video surveillance of her as part of her claim for LTD benefits, and she is not offended by the images taken outside of her house, while she was driving, running errands, shopping, or even walking into Select. However, Dr. Kidd did not expect that CIGNA would go so far as to tape her FCE which, she believed, was being conducted in private, with only licensed therapists present. In her experience, the filming of a patient's medical examination is never allowed, unless the patient signs a written waiver agreeing to the same.
Dr. Kidd did not seek medical treatment for any alleged injury caused by the Defendants' activities, nor has she changed her daily activities since learning about the video surveillance. She does claim, however, that she was "shocked and upset" when she learned that the FCE was filmed without her knowledge or consent. (Kidd Aff. 6, Docket No. 74 at 2).
As indicated at the outset, Dr. Kidd sues, among others, CIGNA Corporation d/b/a CIGNA Group Insurance. CIGNA moves to dismiss under Rule 12(b)(2) of the Federal Rules of Civil Procedure, arguing that this Court lacks personal jurisdiction over it. In support of that position, CIGNA submits an affidavit from Franklin C. Barlow ("Mr. Barlow"), the Accounting Director for CIGNA.
In his affidavit, Mr. Barlow states: (1) CIGNA Corporation is a Delaware corporation with its principal place of business in Philadelphia, Pennsylvania; (2) CIGNA is not licensed to do business in Tennessee, does no business and pays no taxes in this state, has no employees, bank accounts or property here, and has no office or place of business in Tennessee; (3) CIGNA is a holding company which owns stock in other companies; (4) CIGNA is not an insurance company or licensed to operate as such, does not offer any insurance products or services, and does not enter into agency contracts to provide insurance or insurance services; (5) CIGNA has not had any contractual relationship with Dr. Kidd or her former employer, Anesthesia Medical Group, P.C., and had no involvement in processing Dr. Kidd's claim for benefits; and (6) CIGNA had no role in investigating Dr. Kidd, and had no business or contractual relationship with either Select Physical Therapy or Photofax. (Docket No. 45, Barlow Aff. ¶¶ 2-3, 5-12). Mr. Barlow also avers that "CIGNA Group Insurance" does not refer to any legal entity, but rather it is a registered service mark of CIGNA Intellectual Property, Inc., licensed for use by subsidiaries of CIGNA. (Id. ¶ 4).
In order for this Court to have personal jurisdiction over a defendant, the plaintiff must show the defendant has sufficient minimum contacts with Tennessee such that "the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)(citation omitted). Minimum contacts exist where the defendant purposefully avails itself of the privilege of conducting activities within the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). A defendant who invokes the benefit and protections of the state's laws "should reasonably anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
A court may have either general or specific jurisdiction over a defendant. Burger King, 471 U.S. at 472-73. "General...
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