DeMarco v. Life Insurance Company of North America

• Court: District Court, D. Arizona
• Decided: February 25, 2020
• Docket: 2:19-cv-02385
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Leslie DeMarco, No. CV-19-02385-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Life Insurance Company of North America, et al., 13 Defendants. 14

15 This is an ERISA case. Pending before the Court is Plaintiff Leslie DeMarco’s 16 “Brief Re: Standard of Review and Discovery Dispute.” (Doc. 25.) After this brief was 17 filed, DeMarco and Defendant Life Insurance Company of North America (“LINA”) 18 stipulated to de novo review. (Doc. 26.) However, the parties continue to dispute whether, 19 and to what extent, DeMarco should be allowed to pursue discovery. (Doc. 28.) For the 20 following reasons, DeMarco’s request for permission to pursue discovery will be denied.1 21 BACKGROUND 22 DeMarco has sued LINA under the Employee Retirement Income Security Act of 23 1974 (“ERISA”), 29 U.S.C. § 1132, for denying her application for long-term disability 24 benefits. (Doc. 1.) DeMarco was a longtime executive assistant at Iridium Satellite, LLC 25 (“Iridium”). (Id. ¶ 16.) Iridium purchased a group long-term disability policy for its 26

27 1 DeMarco has requested oral argument. The Court will deny the request because the 28 issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 employees from LINA, which was responsible both for determining whether an employee 2 qualified for benefits under the policy and, if so, for paying such benefits. (Id ¶¶ 3, 10.) 3 DeMarco alleges she became disabled on or around July 24, 2017. (Id. ¶ 16.) Soon 4 afterward, DeMarco applied for and received short-term disability benefits. (Id. ¶ 18.) 5 LINA reviewed and approved this application. (Id.) Iridium self-insured the short-term 6 disability plan, meaning it was responsible for paying benefits. (Id. ¶ 19.) 7 On November 27, 2017, after exhausting her 90 days of short-term disability, 8 DeMarco applied for long-term disability benefits. (Doc. 25 at 2.) DeMarco emphasizes 9 that LINA was responsible for both reviewing claims and paying benefits under this policy. 10 (Doc. 1 ¶¶ 24, 25.) 11 On February 5, 2018, LINA denied DeMarco’s claim for long-term disability 12 benefits. (Doc. 25-1 at 2-5.) DeMarco appealed this decision. (Doc. 25 at 2.) 13 On May 25, 2018, Dr. Kevin Smith conducted an independent medical review of 14 DeMarco’s medical condition. (Doc. 28 at 2.) On June 22, 2018, LINA denied DeMarco’s appeal. (Doc. 25-1 at 6-9.) 15 On December 17, 2018, DeMarco appealed again, attaching letters from physicians, 16 test results, lay witness affidavits, and updated medical records. (Doc. 25 at 2.) 17 On February 4, 2019, Dr. Brian Angsten issued an opinion, following review of 18 DeMarco’s medical records, concluding that DeMarco would be able to work in her 19 previous occupation. (Doc. 25-4 at 7.) 20 On March 4, 2019, Dr. Andrew Prychodko issued an opinion, following review of 21 DeMarco’s medical records, concluding that, although DeMarco had some restrictions, she 22 was not wholly precluded from working as of July 2017. (Doc. 25-4 at 22.) 23 The opinions of Dr. Angsten and Dr. Prychodko contain nearly identical 24 certifications that the opinions are their own, their compensation does not depend on the 25 outcome of the opinion, there is no conflict of interest, and their opinions represent a 26 reasonable degree of medical certainty. (Id. at 14, 30.) DeMarco, however, alleges that 27 this so-called independent review is part of a common scheme in the disability industry to 28 deny benefits, where insurance companies farm out claims to third-party vendors like 1 MCMC and Genex Services in an effort to give the “‘impression’ of an unbiased review.” 2 (Doc. 25 at 9.) According to DeMarco, this is allows LINA to “wash[] its hands of its 3 fiduciary duty,” and DeMarco further contends that the doctors hired by third-party 4 vendors, like Drs. Angsten, Prychodko, and Smith, all “deliberately ignored significant, 5 reliable evidence of Plaintiff’s disability.” (Doc. 25 at 9.) 6 On April 12, 2019, DeMarco initiated this action. (Doc. 1.) 7 On September 17, 2019, DeMarco filed her brief regarding the scope of review and 8 discovery dispute. (Doc. 25.) 9 On October 10, 2019, LINA stipulated to de novo review. (Doc. 26.) 10 On November 27, 2019, LINA responded to DeMarco’s brief. (Doc. 28.) 11 DISCUSSION 12 DeMarco’s basic contention is that LINA, the doctors who reviewed her records, 13 and the third-party vendors who hired those doctors were biased against her, which in turn 14 caused LINA to wrongfully deny her claim for long-term disability benefits. (Doc. 25 at 7-10.) Thus, DeMarco seeks to supplement the administrative record2 with various kinds 15 of discovery. (Id. at 10-11.) LINA responds that DeMarco has not shown the “exceptional 16 circumstances” necessary to require additional discovery in an ERISA case involving de 17 novo review. (Doc. 28.) LINA also raises specific objections to some of DeMarco’s 18 specific discovery requests. (Id.) 19 I. Additional Discovery Available On De Novo Review 20 The parties have stipulated to de novo review. (Doc. 26.) The Court’s essential task 21 in an ERISA case involving de novo review is “to evaluate whether the plan administrator 22 correctly or incorrectly denied benefits.” Opeta v. Nw. Airlines Pension Plan for Contract 23 Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (internal quotation omitted). The Court is 24 limited in most such cases to the administrative record and may use its discretion to 25 “consider evidence outside of the administrative record only when circumstances clearly 26

27 2 “In the ERISA context, the administrative record consists of the papers the insurer 28 had when it denied the claim.” Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 632 n.4 (9th Cir. 2009) (internal quotation omitted). 1 establish that additional evidence is necessary to conduct an adequate de novo review of 2 the benefit decision.” Id. (internal quotation omitted, emphasis in original). These 3 “significant restrictions” are “an attempt to further ERISA’s policy of keeping proceedings 4 inexpensive and expeditious.” Gonda v. Permanente Med. Grp., Inc., 300 F.R.D. 609, 613 5 (N.D. Cal. 2014). See also Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 6 1173, 1178 (9th Cir. 2005) (“[A] primary goal of ERISA . . . [is] to provide a method for 7 workers and beneficiaries to resolve disputes over benefits inexpensively and 8 expeditiously.”) (internal quotation omitted). 9 Opeta has caused considerable confusion. Although Opeta’s underlying principle 10 is simple enough—discovery in an ERISA case involving de novo review should be rare— 11 the court went on to identify a “non-exhaustive list of exceptional circumstances” that may 12 trigger the need for such discovery. 484 F.3d at 1217 (citing Quesinberry v. Life Ins. Co. 13 of N. Am., 987 F.2d 1017, 1025 (4th Cir. 1993)).3 That list includes “claims that require 14 consideration of . . . issues regarding the credibility of medical experts . . . [and] instances where the payor and the administrator are the same entity and the court is concerned about 15 impartiality.” Id. One court summarized the “tension in the heart of Opeta” as arising 16 from the conflict between its “ostensibly ‘restrictive’ rule and the common situations that 17 it describes.” Nguyen v. Sun Life Assurance Co. of Canada, 2015 WL 6459689, *8 (N.D. 18 Cal. 2015). Accordingly, district courts have been divided in resolving discovery disputes 19 where, as here, the plaintiff alleges a conflict of interest on the part of the plan administrator 20 and medical professionals. Id. (collecting cases). 21 II. Conflict Of Plan Administrator 22 DeMarco alleges that LINA had a structural conflict of interest because it served as 23 both the decision-maker and payor of benefits. (Doc. 1 ¶¶ 82-83.) Thus, DeMarco seeks 24

25 3 Although Opeta “dealt with the issue of whether evidence outside the record is 26 admissible rather than whether the evidence is discoverable,” district courts “have held that in light of Opeta’s limits on admissibility of evidence in de novo cases and the ERISA’s 27 policy of keeping proceedings inexpensive and expeditious, it is appropriate to place 28 similar limits on discovery.” Polnicky v. Liberty Life Assurance Co. of Boston, 2014 WL 969973, *2 (N.D. Cal. 2014) (quotation omitted). 1 to discover information to illustrate the effects of this conflict and to support her contention 2 that LINA has a history of “parsimonious claims handling,” “self-dealing,” and “cheating 3 insureds out of benefits.” (Doc. 25 at 8.) LINA responds that this structural conflict is 4 irrelevant in light of the de novo standard of review, which means the Court must decide 5 whether she was entitled to benefits without deferring to LINA’s determination. (Doc. 28 6 at 6.) 7 As an initial matter, almost all of the decisions cited by DeMarco arose from cases 8 involving abuse of discretion review, rather than de novo review. This is understandable, 9 given that at the time DeMarco’s brief was filed, the parties were disputing the relevant 10 standard of review. Nevertheless, the relevance of an administrator’s structural conflict of 11 interest depends in significant part on the applicable standard of review. This is because, 12 in abuse of discretion cases, “[a] district court . . . must decide in each case how much or 13 how little to credit the plan administrator’s reason for denying insurance coverage.” Abatie 14 v. Alta Health & Life Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006). In such cases, the court “always considers the inherent conflict when a plan administrator is also the fiduciary.” 15 Id. at 969 (emphasis added). In contrast, in a case (such as this case) involving de novo 16 review, the Court gives no credence to the decision made by plan administrators. And 17 because the decision made by insurance company personnel is “completely irrelevant to 18 the court’s decision, discovery into their motivations is also irrelevant.” Reynolds v. 19 UNUM Life Ins. Co. of Am., 2011 WL 3565351, *2 (D. Ariz. 2011). See also Nguyen, 20 2015 WL 6459689 at *6 (“The question on de novo review is generally not why the insurer 21 reached the decision it did—whether from misanthropy, incompetence, or a miserly grip 22 on ‘its’ funds. . . . [I]t is ‘simply’ whether, given the administrative record, the plaintiff was 23 entitled to benefits.”) (emphasis in original). Thus, courts have recognized that an ERISA 24 plaintiff does not carry its burden of clearly establishing that discovery is necessary for 25 adequate de novo review by “merely pointing to [a defendant’s] dual role as plan 26 administrator and payer.” Nguyen, 2015 WL 6459689 at *6. 27 On the other hand, there may be a need to supplement the record in an ERISA case 28 involving de novo review where a structural conflict “result[s] in a plaintiff’s inability to 1 introduce evidence into the administrative record.” Reynolds, 2011 WL 3565351 at *2. 2 Nevertheless, DeMarco has merely identified a structural conflict of interest on LINA’s 3 part and alleged that this bias caused her claim to be wrongfully denied. Although LINA, 4 as the decision-maker and payor, had a financial incentive to deny disability claims, the 5 Court has no such incentive—its task on de novo review is to determine whether DeMarco 6 is entitled to benefits based on the administrative record. LINA’s decision itself is 7 irrelevant to that determination, so it’s unclear how the financial incentive underlying and 8 allegedly motivating its decision, as well as the impact of that incentive on unrelated past 9 cases, would be relevant. Significantly, DeMarco does not appear to allege that the 10 administrative record was kept incomplete by LINA’s structural conflict. Instead, 11 DeMarco contends that LINA possessed evidence sufficient to grant her claim but 12 manufactured contrary evidence to deny it. (Doc. 25 at 5-6.) Accordingly, DeMarco has 13 not shown this structural conflict of interest demands additional discovery or 14 supplementation of the administrative record. For these reasons, DeMarco may not serve Interrogatory Nos. 1-2 and 8-10 and 15 Request for Production Nos. 3-5 and 17-21. Her request to depose Jomi Harris, which the 16 briefing suggests is intended to explore LINA’s conflict of interest, is also denied. (Doc. 17 25 at 11.) 18 III. Conflict Of Medical Reviewers 19 DeMarco also contends that the medical reviewers to whom LINA referred her case 20 were biased and “deliberately ignored significant, reliable evidence of Plaintiff’s 21 disability.” (Doc. 25 at 9.) She seeks to discover and admit evidence about the relationship 22 between LINA and the third-party vendors for whom the medical reviewers worked, as 23 well as evidence about the rate at which these medical reviewers have historically made a 24 non-disability finding. (Id. at 10-11.) LINA responds that the Court will be able to assess 25 for itself whether the medical reviewers ignored evidence and that the conflict DeMarco 26 alleges—that the medical reviewers were compensated by a third-party vendor, which was 27 compensated by LINA—is insufficient to allow additional discovery. (Doc. 28 at 6-7.) 28 District courts have divided on whether the compensation of medical reviewers by 1 insurance companies in and of itself justifies discovery outside the administrative record 2 on de novo review. Some courts have reasoned that a “potential conflict of interest or bias 3 on the part of the physician reviewers . . . is relevant because it goes to the weight the court 4 will assign those opinions in its de novo review.” Rowell v. Aviza Tech. Health & Welfare 5 Plan, 2012 WL 440742, *2 (N.D. Cal. 2012). See also Reynolds, 2011 WL 3565351 at *1 6 (same); Knopp v. Life Ins. Co. of N. Am., 2009 WL 5215395, *3 (N.D. Cal. 2009) (same). 7 Other courts have held that “[a] plaintiff who wants discovery beyond the existing 8 administrative record in a de novo case must point to something more than . . . the fact of 9 compensation to third-party medical reviewers.” Nguyen, 2015 WL 6459689 at *10. See 10 also Kelly v. Standard Ins. Co., 2018 WL 3639844, *3 (D. Or. 2018) (same); Blaj v. Unum 11 Life Ins. Co. of Am., 2014 WL 2735182, *4 (N.D. Cal. 2014) (“In the absence of concrete 12 allegations pertaining to qualifications or credibility, the district court will not find an 13 exceptional circumstance warranting additional discovery”). The rationale for this 14 conclusion is that Opeta restricts extrinsic discovery to “exceptional circumstances,” insurance companies routinely employ medical reviewers, and “[n]o one would expect 15 such consultants to work for free.” Nguyen, 2015 WL 6459689 at *9. 16 On the one hand, it makes intuitive sense that a medical reviewer whose 17 compensation ultimately comes from an insurance company—even where there’s a third- 18 party provider acting as an intermediary—might be inclined to reach conclusions that are 19 favorable to the insurance company. Moreover, the Court, lacking medical expertise of its 20 own and forced to weigh conflicting expert medical opinions, could conceivably benefit 21 from additional evidence as to whether a medical review is sound. On the other hand, 22 employment (and thus, necessarily, payment) of medical reviewers is a routine practice of 23 insurance companies, and Opeta limits discovery outside the record to “exceptional 24 circumstances.” 484 F.3d at 1217. Furthermore, the language in Opeta is permissive rather 25 than mandatory: it doesn’t say that doubt about the credibility of a medical professional 26 requires discovery to supplement the administrative record and merely identifies such 27 doubt as a reason why “introduction of evidence beyond the administrative record could 28 be considered necessary.” Id. at 1225 (emphasis added). 1 The Court concludes that DeMarco’s request for additional discovery into the 2 conflicts of the medical reviewers should be denied. Opeta’s basic principle is that 3 extrinsic discovery is permissible “only when circumstances clearly establish that 4 additional evidence is necessary to conduct an adequate de novo review of the benefit 5 decision.” 484 F.3d at 1217. DeMarco specifically requests information about (1) the 6 medical reviewers’ track records in finding that claimants are not disabled, (2) how 7 frequently LINA hired third-party vendors and medical reviewers, and (3) how much LINA 8 paid third-party vendors and medical reviewers. (Doc. 25 at 10-11.) Although this 9 information could be probative, DeMarco hasn’t clearly established that this information 10 would be necessary for the Court to conduct an adequate de novo review of her case. 11 First, there is already evidence in the administrative record that will allow the Court 12 to make a credibility assessment without considering the medical reviewers’ historical 13 findings. The administrative record contains reports from DeMarco’s treating physicians, 14 and the Court can assess on its own whether LINA’s medical reviewers properly took those reports into account. The reviewers’ “batting averages,” as LINA puts it, are not necessary 15 for a credibility determination. (Doc. 28 at 9.) Moreover, the rate at which a medical 16 reviewer finds a claimant to be disabled or not disabled is an imperfect proxy for bias 17 because it fails to account for whether the medical reviewer’s findings were correct. 18 Although there may be some probative value to the rate at which a medical reviewer finds 19 claimants disabled, it’s difficult to assess the actual value of this evidence without knowing 20 the conclusions an objective and unbiased doctor would have reached reviewing the same 21 cases. Broadening the scope of discovery in this manner is at odds with the policy of 22 “keeping [ERISA] proceedings inexpensive and expeditious.” Gonda, 300 F.R.D. at 613. 23 Second, it’s not clear why the amount LINA paid to third-party vendors or medical 24 reviewers, or the frequency with which their services were used, would be necessary for 25 adequate de novo review. The fact that the medical reviewers were paid, indirectly, by 26 LINA is inevitable because LINA was the entity requesting the service, and “[n]o one 27 would expect such consultants to work for free.” Nguyen, 2015 WL 6459689 at *9. The 28 medical reviewers’ credibility would be seriously impugned if they were paid more for a 1 given finding, but it’s not clear that DeMarco actually makes this allegation. Indeed, the 2 reports of Drs. Angsten and Prychodko, attached to DeMarco’s briefing, certify that their 3 compensation does not depend on a given outcome and that their opinions are their own. 4 (Doc. 25-4 at 14, 30.) Moreover, without some frame of reference—like standard 5 insurance industry rates, rates LINA paid to other doctors, rates other insurance companies 6 paid to these doctors, how many times other insurance companies hired third-party vendors 7 and medical reviewers, and how often other insurance companies hired these doctors—it 8 would be difficult to assess whether the amount LINA paid to third-party vendors or the 9 doctors themselves, or the frequency with which they were hired, was somehow 10 inappropriate. As noted, expanding discovery in this manner undermines the policy goal 11 of ERISA in keeping proceedings inexpensive and expeditious. 12 For these reasons, DeMarco may not serve Interrogatory Nos. 3-7 and 11-17, 13 Request for Production Nos. 6-16, and Request for Admission Nos. 5-7 and 9-11. 14 IV. Other Items Of Requested Discovery Some of the discovery DeMarco seeks does not fit neatly into the two categories of 15 bias discussed above (i.e., bias on the part of LINA and bias on the part of third-party 16 vendors and medical reviewers). In the interest of completeness and analytical clarity, the 17 Court will discuss those items here. 18 1. Request for Production Nos. 1-2 19 DeMarco requests that LINA produce “[a]ll documents reviewed or generated in 20 any phase of LINA’s review which are contained in Plaintiff’s claim file, that are not in 21 what LINA purports to be the administrative record already sent to Plaintiff’s counsel,” as 22 well as “all documents, correspondence, or communications” between any combination of 23 LINA, the third-party vendors, and medical reviewers “regarding Plaintiff’s claim.” (Doc. 24 25-9 at 20.) 25 These requests will be denied. The Court’s task on de novo review is to review the 26 administrative record and determine whether DeMarco should have been awarded benefits. 27 DeMarco has not “clearly establish[ed]” why the materials discussed in RFP Nos. 1-2 28 would be “necessary” to complete such review. Opeta, 484 F.3d at 1217. Indeed, these 1 requests appear to seek, at least in part, information that was generated after the relevant 2 decisions were made and/or that was not before LINA (for example, communications 3 between combinations of medical reviewers and third-party vendors). 4 2. Request for Admission No. 1 5 DeMarco requests that LINA admit that it was “required to evaluate Plaintiff’s long- 6 term disability claim in compliance with the terms set forth in the Regulatory Settlement 7 Agreement (‘RSA’) LINA entered into with the Arizona Department of Insurance on June 8 11, 2013.” (Doc. 25-9 at 28.) DeMarco’s briefing states that LINA was required to comply 9 with this settlement agreement. (Doc. 25 at 8.) However, there’s no other explanation 10 concerning why this settlement agreement—and whether LINA complied with it—is 11 relevant to a de novo review of DeMarco’s claim. Given that the onus was on DeMarco to 12 clearly establish why additional discovery is necessary, this request for admission may not 13 be served on LINA. 14 3. Request for Admission Nos. 2-4 DeMarco requests that LINA admit that it never provided reports from medical 15 reviewers and in-house rehabilitation specialists to her treating physicians following her 16 second appeal request. (Doc. 25-9 at 28-29.) However, DeMarco’s briefing does not 17 address why this topic is relevant. Because DeMarco bears the burden of clearly showing 18 why the requested material is necessary for de novo review, she may not serve these 19 requests for admission on LINA. 20 4. Request for Admission No. 8 21 Finally, DeMarco requests that LINA admit that its “failure to make a timely 22 decision on Plaintiff’s second appeal request violates the terms of its own Group Policy 23 No. SGD-605939.” Again, the relevance of this request is not discussed in DeMarco’s 24 briefing. However, because the timeliness discussion in DeMarco’s briefing pertains to 25 the argument that her claim ought to be reviewed de novo, the Court suspects this request 26 has been rendered moot by the parties’ stipulation to de novo review. In any case, DeMarco 27 may not serve this request for admission because she failed to adequately explain why it is 28 necessary for adequate de novo review. 1 Accordingly, IT IS ORDERED that DeMarco’s “Brief Re: Standard of Review and 2|| Discovery Dispute” (Doc. 25) is denied to the extent it seeks permission to pursue || discovery. 4 Dated this 25th day of February, 2020. 5 6 (} _- 7 ee fri Dominic W. Lanza 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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