The trial court in US Airways v McCutchen entered an order permitting the defendants to file an “amended Answer, including amended affirmative defenses and an amended counterclaim.”  The Court stated that “Under normal circumstances, this Court would be loath to allow amendment of the pleadings and a reopening of discovery nearly six (6) years after commencement of the case.” 

Keep in mind that US Airways never produced the “plan document” until the case reached the Supreme Court.  At that point, it produced its “plan document” at the request of the Solicitor General.  Furthermore, the “plan document” as produced did not provide for a right of reimbursement in regard to UM coverage.  At the trial level, US Airways had, when resisting an effort to compel its production.  As noted by the Court,  US Airways represented to it “that the Plan expressly provided for its right to reimbursement. Though the Court denied the request for a protective order, US Airways did not produce the Plan contending there were never any “changes” to the controlling subrogation/reimbursement language.”

In its order granting relief to the defendants, the Court stated

… the Court is troubled by US Airways’ untimely production of the Plan documents and … any prejudice to US Airways at this point of the litigation is a direct result of its failures, whether deliberate or not, during the discovery stage of the litigation.


Despite its obligations under Rule 26 of the Federal Rules of Civil Procedure and its statutory obligation pursuant to 29 U.S.C. § 1024(b)(4), US Airways sought a protective order, arguing that Defendants were seeking information that was irrelevant to the dispute and representing to this Court that the Plan expressly provided for its right to reimbursement. 


The Court finds US Airways’ reasons for its failure to produce the Plan to be woefully inadequate. Justice, therefore, requires that Defendants’ be granted leave to amend to allow a determination regarding whether the Plan documents allow for reimbursement, and whether US Airways, as the Plan Administrator, breached its fiduciary duty to Mr. McCutchen.

Thank you Professor Roger Baron for the above Commentary

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