Glutzer v. Prudential Insurance Co. of America

183 F.R.D. 632, 1999 U.S. Dist. LEXIS 62, 1999 WL 6515
CourtDistrict Court, N.D. Illinois
DecidedJanuary 7, 1999
DocketNo. 97 C 6695
StatusPublished
Cited by1 cases

This text of 183 F.R.D. 632 (Glutzer v. Prudential Insurance Co. of America) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glutzer v. Prudential Insurance Co. of America, 183 F.R.D. 632, 1999 U.S. Dist. LEXIS 62, 1999 WL 6515 (N.D. Ill. 1999).

Opinion

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Before the court is (1) defendant The Prudential Insurance Company of America’s motion to strike plaintiff Barbara Glutzer’s cross-motion for summary judgment; (2) defendant’s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c); (3) plaintiffs cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c); and (4) plaintiffs request for sanctions against Prudential pursuant to Federal Rule of Civil Procedure 11. For the following reasons, the court (1) denies defendant’s motion to strike plaintiffs cross-motion for summary judgment; (2) grants defendant’s motion for summary judgment; (3) denies plaintiffs cross-motion for summary judgment; and (4) denies plaintiffs request for sanctions against Prudential.

I. BACKGROUND1

Plaintiff Barbara Glutzer (“Glutzer”) is insured as a beneficiary under a certificate of coverage (“the certificate”) issued by defendant The Prudential Insurance Company of America (“Prudential”) to plaintiffs husband Norman M. Glutzer. After Prudential’s refusal to cover a treatment for Glut-zer’s ovarian cancer, Glutzer filed a two-count complaint in Illinois state court against Prudential, asserting state law claims. Count I seeks injunctive relief, requesting the court to order Prudential to cover the expenses related to Glutzer’s treatment and follow-up care. Count II is a request for declaratory judgment pursuant to 735 ILCS 5/2-701, requesting a judgment that Glutzer’s treatment is necessary and generally accepted and is fully covered by the terms of the plan.

On September 23, 1997, Prudential filed a notice of removal in which Prudential contended that this court had original subject matter jurisdiction because (1) Glutzer’s claim arose under, and is governed exclusively by, the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 [634]*634(“ERISA”) and (2) pursuant to 28 U.S.C. § 1332, complete diversity between the parties exists2 and the amount in controversy exceeds $75,000. Glutzer filed a motion to remand, arguing that this court did not have subject matter jurisdiction over the case. The court declined to remand the case because it had subject matter jurisdiction based on diversity of citizenship. At this time, the court did not reach the issue of whether Glutzer’s claims arose under, and were governed exclusively by, ERISA.

On December 12, 1997, Prudential filed a motion to dismiss Glutzer’s state law claims alleging that the claims were preempted by ERISA. The court denied Prudential’s motion because from the pleadings the court was unable to determine whether the plan constituted an “employee benefit plan.” After denying the motion to dismiss, the court granted Glutzer leave to amend her complaint to plead the relevant ERISA claims in the alternative to her state law claims. After reviewing Glutzer’s amended complaint, the court explained in its July 28,1998 order that Glutzer’s insurance plan did not qualify as an “employee benefit plan” under ERISA because Mr. Glutzer is the sole employee of Norman M. Glutzer, P.C.

Currently, the court is reviewing Prudential’s motion and Glutzer’s cross-motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Prudential moves for summary judgment on the grounds that Glutzer’s treatment is excluded from coverage under an express policy which precludes benefit payments for experimental or investigational treatments which are determined by the prevailing opinion of a medical specialty to need further evaluation or are under study. Glutzer moves for summary judgment only on the ground that Glutzer’s treatment is neither experimental or investigational under the terms of the exclusion because it was not provided as a part of a study. The court is also reviewing Prudential’s request that the court strike Glut-zer’s cross-motion for summary judgment and Glutzer’s request for Rule 11 sanctions against Prudential.

In order to understand this court’s opinion, one must be aware of a number of facts. For the sake of clarity, a recitation of these facts is in two parts. Part A discusses events that occurred with respect to Glut-zer’s treatment and Prudential’s denial of coverage. Part B discusses facts relating to the investigational or experimental nature of Glutzer’s treatment.

A. Events which occurred with respect to Glutzer’s treatment and Prudential’s denial of coverage

In and around May of 1995, doctors diagnosed Glutzer with ovarian carcinoma. From May of 1995 through May or June of 1996, Glutzer underwent treatment for her ovarian cancer. As part of her treatment, Glutzer received standard chemotherapy. Her final cycle of chemotherapy was on May 2, 1996. On or about December 5, 1996, Glutzer consulted with Dr. Steven Devine (“Devine”) of Lutheran General Hospital’s Cancer Center to discuss treatment options. One such option was the administration of High Dose Chemotherapy with a Peripheral Stem Cell Rescue (“HDCT/PSCR”). This treatment involves the administration of chemotherapeutic agents or drugs in doses that are so high that they destroy the bone marrow’s ability to produce red blood cells. Thus, prior to the high dose chemotherapy, stem cells are removed from the patient’s bloodstream and preserved. After the administration of the high dose chemotherapy, the patient’s previously harvested stem cells are “transplanted” back into the patient’s bloodstream. On or about February 10, 1997, Glutzer underwent an open laparoscopy and multiple peritoneal biopsies at Lutheran General Hospital which revealed evidence that the cancer had returned.

On April 24, 1997, Prudential received a letter from Devine requesting preauthorization for the proposed HDCT/PSCR treatment. Richard Rosierowski, M.D. of Prudential reviewed Devine’s preauthorization request. Pursuant to that review, Prudential denied the request because Prudential found the treatment unnecessary or inappropriate [635]*635and experimental and investigational under the terms of an exclusion in Glutzer’s certificate. Under the generally excluded charges section, the certificate states:

(4) Charges For Experimental Or Investi-gational Services or Supplies: A charge for a service or supply is not covered to the extent that it is experimental or investiga-tional. ...
For the purpose of this exclusion a service will be considered “experimental or investigational” if Prudential determines that one or more of the following is true:
(a) The service or supply is under study or in a clinical trial to evaluate its toxicity, safety or efficacy for a particular diagnosis or set of indications. Clinical trials include but are not limited to phase I, II, and III clinical trials.

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Bluebook (online)
183 F.R.D. 632, 1999 U.S. Dist. LEXIS 62, 1999 WL 6515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glutzer-v-prudential-insurance-co-of-america-ilnd-1999.