UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LUCAS WALL,
Plaintiff, v. Civ. Action No. 20-2075 RELIANCE STANDARD LIFE (EGS) INSURANCE CO.,
Defendant.
MEMORANDUM OPINION
Plaintiff Lucas Wall (“Mr. Wall”), proceeding pro se,
brings this lawsuit against Reliance Standard Life Insurance
Company (“Reliance”) seeking $10,000 in damages for: (1)
harassment; (2) invasion of privacy; and intentional infliction
of emotional distress arising out of the termination of his
disability benefits. Compl., ECF No. 1-1 at 1-2. Mr. Wall filed
his claim in the Small Claims and Conciliation Branch of the
Superior Court of the District of Columbia, and Reliance removed
the action to this court, alleging federal jurisdiction based on
the Employment Retirement Income Security Act of 1974 (“ERISA”)
and 29 U.S.C. §§ 1132(e)(1) and 1132(f). Notice of Removal, ECF
No. 1 at 2.
Pending before the Court is Mr. Wall’s Motion for Leave to
File Second Amended Complaint. See ECF No. 21. Upon
1 consideration of the motion, opposition, reply, and the
applicable law, Mr. Wall’s motion is GRANTED IN PART AND DENIED
IN PART.
I. Background
Mr. Wall alleges that his long-term disability benefits
(“benefits”) are provided by a policy underwritten and
administered by Reliance for the employees of the American
Association of State Highway & Transportation Officials, by whom
he was employed from June 2008 until March 2012. Id. at 19-20.
In March 2012, Mr. Wall became “Totally Disabled” due to Non-24-
Hour Sleep/Wake Disorder. Id. at 20. Mr. Wall received benefits
until January 29, 2020, when Reliance notified him that it was
terminating his benefits. Id. at 21. Mr. Wall alleges that
Reliance’s “termination of [his] benefits was based in great
part on a November 10, 2019, ‘peer review’ of his medical
records by Defendant Dr. David Brodner.” Id. Mr. Wall further
alleges that in response to his appeal of the termination
decision, Reliance “commissioned another ‘peer review’ by
Defendant Dr. Tajuddin Jiva” and that Reliance denied his appeal
on July 29, 2020. Id. at 21-22 Thereafter, Reliance had Mr. Wall
undergo an Independent Medical Examination (“IME”), after which
the termination of his benefits was reversed. Id. at 22. In
response to the notification he received that his benefits were
being reinstated, Mr. Wall “demanded [Reliance] revise the
2 letter with five specific paragraphs ensuring [he] will be
protected from its arbitrary and capricious decisionmaking in
the future.” Id. at 23.
Based on these alleged facts, Mr. Wall’s Amended Complaint
asserts the following claims: (1) demand for payment of
interest, costs & fees, & judicial relief to ensure continued []
benefits under ERISA against Reliance, including violations of
ERISA; (2) bad faith against all defendants and breach of
implied contractual covenant of good faith and fair dealing, and
violations of Pennsylvania insurance law by Reliance; (3)
intentional infliction of emotional distress against all
defendants; (4) negligence against all defendants; (5)
harassment against Reliance; (6) invasion of privacy against
Reliance; (7) medical malpractice against Dr. Brodner and Dr.
Jiva. See id. at 24-62.
On September 14, 2020, Mr. Wall filed a Motion for Leave to
File Amended Complaint, see ECF No. 16; but withdrew that motion
on September 24, 2020, see ECF No. 20. On the same day, however,
Mr. Wall filed a Motion for Leave to File Second Amended
Complaint, see ECF No. 21; which the Court will construe as a
Motion for Leave to File an Amended Complaint since Mr. Wall
withdrew his first request for leave to file an amended
complaint.
3 II. Standards of Review
Federal Rule of Civil Procedure 15 provides that a
plaintiff may amend his complaint more than 21 days after a
responsive pleading has been filed with the consent of the
defendant or the leave of court, see Fed. R. Civ. P. 15(a); and
that “[t]he court should freely give leave when justice so
requires," see Fed. R. Civ. P. 15(a)(2). “Courts may deny a
motion to amend a complaint as futile . . . if the proposed
claim would not survive a motion to dismiss.” James Madison Ltd.
By Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). “[I]n assessing an
argument that an amendment would be futile, the court must
assess the proposed amendments under the same standard as would
be applied to a motion to dismiss.” Oladokun v. Corr. Treatment
Facility, 5 F. Supp. 3d 7, 13 (D.D.C. 2013). "Because amendments
are to be liberally granted, the non-movant bears the burden of
showing why an amendment should not be allowed." Abdullah v.
Washington, 530 F. Supp. 2d 112, 115 (D.D.C. 2008), app.
dismissed, No. 08-7022, 2008 U.S. App. Lexis 9082 (D.C. Cir.
Mar. 12, 2008) (citing Dove v. WMATA, 221 F.R.D. 246, 2476
(D.D.C. 2004).
4 B. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, (2007) (internal quotation marks omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009)
(internal quotation marks omitted). A claim is facially
plausible when the facts pled in the complaint allow the court
to "draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. The standard does not amount to
a "probability requirement," but it does require more than a
"sheer possibility that a defendant has acted unlawfully." Id.
"[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint." Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotation marks omitted). “In determining whether a
5 complaint fails to state a claim, [the Court] may consider only
the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the Court] may take judicial notice.” EEOC v. St. Francis
Xavier Parochial Schl., 117 F.3d 621, 624 (D.C. Cir. 1997). In
addition, the court must give the plaintiff the "benefit of all
inferences that can be derived from the facts alleged." Kowal v.
MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). A "pro
se complaint is entitled to liberal construction." Washington v.
Geren, 675 F. Supp. 2d 26, 31 (D.D.C. 2009) (citation omitted).
Even so, "[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements" are not
sufficient to state a claim. Iqbal, 556 U.S. at 678.
III. Analysis
A. ERISA Claims
In Count I, Mr. Wall demands payment of interest, costs and
fees from Reliance; judicial relief to ensure continued benefits
under ERISA from Reliance, and contends that Reliance violated
ERISA when it terminated his benefits for six months. Am. Compl.,
ECF No. 21 at 24-36.
ERISA’s civil enforcement provision provides that “[a]
civil action may be brought—(1) by a participant or beneficiary—
... (B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to
6 clarify his rights to future benefits under the terms of the
plan.” 29 U.S.C. § 1132(a)(1)(B).
1. Administrative Exhaustion and Mootness
Reliance argues that Mr. Wall’s motion should be denied
because he filed his Superior Court complaint prior to
exhausting his administrative remedies as the appeal of the
termination of his benefits was pending, and that his claims
against Reliance are moot because Mr. Wall’s benefits have since
been reinstated. Opp’n, ECF No. 22 at 4-6. Reliance also argues
that Mr. Wall’s claims for interest, costs, or fees are “null”
for the same reason. Id. at 11. Mr. Wall does not dispute that
he filed his Superior Court complaint before he exhausted his
administrative remedies, Reply, ECF No. 23 at 2; however, there
is also no dispute that those remedies have been exhausted at
this time.
“It is well established that, barring exceptional
circumstances, plaintiffs seeking a determination pursuant to
ERISA of rights under their pension plans ‘must ... exhaust
available administrative remedies under their ERISA-governed
plans before they may bring suit in federal court.’”
Communications Workers of America v. American Tel. and Tel. Co.,
40 F.3d 426, 431 (D.C. Cir. 1994) (internal quotation marks and
citations omitted). However, “[b]ecause ERISA itself does not
specifically require the exhaustion of remedies available under
7 pension plans, courts have applied this requirement as a matter
of judicial discretion.” Id. at 432. Among the reasons for
applying this requirement is to avoid judicial review where “a
plan’s own remedial procedures [] resolve[s] [the] claims.” Id.
Mr. Wall has now exhausted his administrative remedies and
his benefits have been reinstated by Reliance. He seeks to amend
his complaint to add, among other things, certain ERISA claims.
As explained below, Mr. Wall states certain claims under ERISA.
Accordingly, there is no reason for the Court to apply the
exhaustion requirement at this time and dismiss Mr. Wall’s
complaint. The Court rejects Reliance’s argument that Mr. Wall’s
claims are moot because his benefits have been reinstated,
because Mr. Wall seeks to amend his complaint to assert
different ERISA claims.
2. Interest on Withheld Benefits
Mr. Wall alleges that Reliance has not paid the interest on
the long-term disability benefits that were withheld for six
months. Am. Compl., ECF No. 21 at 25. Reliance argues that Mr.
Wall is not entitled to pre-judgment interest because there has
been no judgment in this case. Opp’n, ECF No. 22 at 11-12.
“[P]rejudgment interest on unpaid ERISA benefits is
presumptively appropriate” because: (1) “to permit the fiduciary
to retain the interest earned on wrongly withheld benefits would
amount to unjust enrichment—a fiduciary would benefit from
8 failing to pay ERISA benefits”; (2) “prejudgment interest
ensures that a beneficiary is fully compensated, including for
the loss of the use of money that is his”; and (3) “prejudgment
interest promotes settlement and deters any attempt to benefit
unfairly from inevitable litigation delay.” Moore v. Capital
Care, 461 F.3d 1, 12-13 (D.C. Cir. 2006) (citations omitted).
This same reasoning arguably applies to unpaid interest on the
benefits that Mr. Wall alleges were withheld for six months.
Accordingly, Mr. Wall states a claim for recovery of the
interest on the withheld benefits. 29 U.S.C. § 1132(a)(1)(B).
3. Attorney’s Fees
Mr. Wall seeks costs and attorney’s fees, to be paid to an
attorney should he hire one, or to himself if he continues to
represent himself pro se. Am. Compl., ECF No. 21 at 62. Reliance
argues that Mr. Wall is not entitled to collect fees because he
is not an attorney. Opp’n, ECF No. 22 at 12. However, none of
the cases cited by Reliance concern whether a party proceeding
pro se can recover attorney’s fees under ERISA. See id. at 12.
Whether Mr. Wall would be entitled to attorney’s fees can be
determined at a later time.
4. Equitable Relief Under ERISA
Mr. Wall alleges that Reliance’s termination of his long-
term disability benefits constitutes a violation of ERISA, and
seeks “equitable relief under ERISA to ensure this illegal
9 action never happens in the future and to compensate [him] for
the damages [he has] incurred because of the illegal act.” Am.
Compl., ECF No. 21 at 27-32. Reliance argues that Mr. Wall lacks
standing to assert a claim for future equitable relief. Opp’n,
ECF No. 22 at 12-13.
ERISA provides that a participant may bring a civil action
“to clarify his rights to future benefits under the terms of the
plan,” 29 U.S.C. § 1132(a)(1)(B); and “(A) to enjoin any act or
practice which violates any provision of this subchapter or the
terms of this plan, or (B) to obtain other appropriate relief
(i) to redress such violations or (ii) to enforce any provisions
of this subchapter or the terms of the plan,” 29 U.S.C. §
1132(a)(3). “A participant or beneficiary can [] bring suit
generically to ‘enforce his rights’ under the plan, or to
clarify any of his rights to future benefits.” Aetna Health Inc.
v. Davila, 542 U.S. 200, 210-11 (2004). The Court rejects
Reliance’s argument as the plain language of the statute
provides that a participant may bring a civil action to clarify
his rights to future benefits.
Accordingly, Mr. Wall’s Motion for Leave to File an Amended
Complaint is GRANTED as to his claims for: (1) interest on the
six months of withheld benefits; (2) clarification of his right
to future benefits; and (3) enforcing his rights under the plan.
10 B. State Common Law Claims
Reliance argues that all of Mr. Wall’s state law claims are
pre-empted by ERISA. Opp’n, ECF No. 22 at 10. 1
ERISA preempts “any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan.” 29 U.S.C.
§ 1144(a). The Supreme Court has explained that its
case law to date has described two categories of state laws that ERISA pre-empts. First, ERISA pre-empts a state law if it has a “‘reference to’ ” ERISA plans. [New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 565 (1995)]. To be more precise, “[w]here a State's law acts immediately and exclusively upon ERISA plans ... or where the existence of ERISA plans is essential to the law's operation ..., that ‘reference’ will result in pre-emption.” [California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997) (SCALIA, J., concurring). Second, ERISA pre-empts a state law that has an impermissible “connection with” ERISA plans, meaning a state law that “governs ... a central matter of plan administration” or “interferes with nationally uniform plan administration.” Egelhoff v. Egelhoff, 532 U.S. 141, 148, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001). A state law also might have an impermissible connection with ERISA plans if “acute, albeit indirect, economic effects” of the state law “force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.” Travelers,
1 Reliance also argues that the individual defendants are not proper parties to the suit because they are not fiduciaries. Opp’n, ECF No. 22 at 10. However, the Court has not “recast” Mr. Wall’s claim as an ERISA claim to recover benefits and so the persuasive authority relied on by Reliance is inapposite. See Hogan v. Jacobson, 823 F.3d 872, 883 (6th Cir. 2016).
11 supra, at 668, 115 S. Ct. 1671. When considered together, these formulations ensure that ERISA's express pre-emption clause receives the broad scope Congress intended while avoiding the clause's susceptibility to limitless application.
Gobeille v. Liberty Mut. Ins. Co., 577 U.S. 312, 319-20 (2016).
To determine whether a claim is preempted, the court
“simply asks if state law conflicts with the provisions of ERISA
or operates to frustrate its objects.” VanderKam v. VanderKam,
776 F.3d 883, 890 (D.C. Cir. 2015) (quoting Boggs v. Boggs, 520
U.S. 833, 841 (1997)). And “in order to answer that question, we
must first ascertain the federal interest,” which the Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has stated is “to promote the interests of employees and their
beneficiaries in employee benefit plans.” VanderKam, 776 F.3d at
890 (internal quotation marks and citations omitted).
1. Count II: Bad Faith Against All Defendants, Breach of Implied Contractual Covenant of Good Faith and Fair Dealing, and Violations of Pennsylvania Insurance Law
Mr. Wall alleges bad faith by Reliance in “fail[ing] to
thoroughly investigate [his] worsening medical conditions before
illegally terminating [his] claim in January 2020 and upholding
that termination six months later on appeal.” Am. Compl., ECF
No. 21 at 40. He further alleges bad faith in Reliance’s delay
in sending him for an IME. Id. However, and as Mr. Wall
acknowledges, see Am. Compl., ECF No. 21 at 29 ¶ 169, District
12 of Columbia law does not “recognize a tort of bad faith by
insurance companies in the handling of policy claims.” Choharis
v. State Farm Fire & Cas. Co., 961 A.2d 1080, 1087 (D.C. 2008).
With regard to Mr. Wall’s claim for breach of implied
contractual covenant of good faith and fair dealing, the
District of Columbia Court of Appeals has stated that
Under District of Columbia law, every contract contains within it an implied covenant of both parties to act in good faith and damages may be recovered for its breach as part of a contract action. See Murray v. Wells Fargo Home Mortgage, 953 A.2d 308, 321 (D.C. 2008) and cases cited. Disputes relating to the respective obligations of the parties to an insurance contract should generally be addressed within the principles of law relating to contracts, and bad faith conduct can be compensated within those principles.
Id. Mr. Wall’s breach of contract claim essentially alleges that
Reliance “improper[ly] process[ed his] claim”; it is therefore
preempted by ERISA. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41,
57 (1987) (concluding that the plaintiff’s state law claims for
bad faith and breach of contract “asserting improper processing
of a claim for benefits and an ERISA-regulated plan” did not
fall within ERISA’s savings clause and so were preempted);
Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 114 (2d
Cir. 2008) (affirming dismissal of plaintiff’s state law claims
sounding in breach of contract, breach of the covenant of good
faith and fair dealing, violation of the Connecticut Unfair
13 Trade Practices Act, reckless misrepresentation, negligent
misrepresentation, and tortious interference with contract as
preempted by ERISA); The Psychiatric Institute of Washington,
D.C., Inc. v. Connecticut General Life Insurance Company, 780 F.
Supp. 24 (D.D.C. 1992) (state law breach of contract claim
preempted by ERISA).
As to his claims for “bad faith” against Dr. Brodner and
Dr. Jiva, Mr. Wall has presented no authority supporting a
common law cause of action for “bad faith” under District of
Columbia law based on the allegations in the Amended Complaint,
and the Court is aware of none.
Mr. Wall alleges that Reliance’s “bad faith conduct
violates [Pennsylvania] insurance law regarding unfair claim
determination practices.” Am. Compl., ECF No. 21 at 42. Mr. Wall
alleges that Reliance is based in Pennsylvania and seeks
punitive damages pursuant to an alleged violation of 42 Pa.C.S.
§ 8371. Am. Compl., ECF No. 21 at 42. However, the United States
Court of Appeals for the Third Circuit has ruled that claims
brought pursuant to 42 Pa.C.S. § 8371 are preempted by ERISA,
and the Court finds that ruling persuasive. Barber v. Unum Life
Insurance Co., 383 F. 3d 134 (3d Cir. 2004).
Complaint is DENIED as to his bad faith, breach of contract, and
14 violations of Pennsylvania insurance law claims as they would
not survive a motion to dismiss.
2. Count III: Intentional Infliction of Emotional Distress Against All Defendants
Mr. Wall alleges that “all three defendants ha[ve] a
professional obligation to care for [his] well-being because [he
is] disabled.” Am. Compl., ECF No. 21 at 51. Mr. Wall further
alleges that Dr. Brodner and Dr. Jiva “ha[ve] a relationship
with [him] that implicates [his] well being because they were
tasked with professionally evaluating [his] medical records and
determining whether there was any cause to terminate [his]
disability benefits.” Id. Mr. Wall alleges that the individual
defendants “breached their duty to avoid inflicting emotional
distress on [him] by writing reports full of falsehoods
concluding that [he is] no longer disabled, without any evidence
to support their findings.” Id. Mr. Wall also argues that the
defendants have violated the public policy of the United States
to protect people with disabilities, id. at 53; and that the
defendants should be held to a higher standard of behavior
because they were on notice of his particular susceptibility to
emotional distress, id.
Courts in other circuits have held that certain claims for
intentional infliction of emotional distress are not preempted
15 by ERSIA. In Dasie v. The Reed Group, LTD., No. C 15-0318, 2015
WL 6954915 (N.D. Ca. Nov. 10, 2015), the plaintiff
allege[d] such tortious conduct as falsely accusing plaintiff of “lying” about his disability, urging plaintiff to take experimental medications, inducing plaintiff to increase his medications, forcing plaintiff “to undergo a litany of rigorous medical examinations without considering their results,” and pressuring plaintiff “to engage in further medical testing that it knew would cause ... pain, emotional distress and anxiety.
Id. at *4 (internal quotation marks omitted). The Court held
that the claim was not preempted because: (1) plaintiff’s
request for “damages associated with his claim for intentional
infliction of emotional distress . . . is based on allegations
that involve harassing and oppressive conduct independent of the
duties of administering an ERISA plan” and therefore “falls
outside the scope of ERISA and could not have been brought under
Section 502(a)(1)(B),” id. at * 2; and (2) the “defendant’s duty
to not engage in the alleged tortious conduct existed
independent of defendants’ duties under the ERISA plan,” id. at
*3. The Court rejected the defendant’s argument that the claim
was preempted “because it is an attempt to use an alternative
enforcement mechanism to achieve the same ends provided by
ERISA” because the “plaintiff’s claim for intentional infliction
of emotional distress arises from alleged harassing and
oppressive conduct beyond the denial of benefits” and because
16 plaintiff was not claiming that “the claim arose from the
defendant’s failure to timely pay benefits.” Id.
In Barker v. The Hartford Life and Accident Insurance Co.,
Civil Action No. 3:06-CV-1514-P, 2007 WL 2192298 (N.D. Tx., July
31, 2007), the plaintiff’s claim for intentional infliction of
emotional distress arose “from alleged humiliating, shameful,
and intentional harassment by Defendant during more than one
phone call.” Id. at *5. The court held that this claim was not
preempted based on the following reasoning:
Clearly, Barker's IIED claim would not exist in the absence of the Plan; however, the Court finds this too tenuous a connection to warrant ERISA preemption. The harassment alleged by Barker occurred during the investigation of Barker's ERISA claim, not during the actual administration of benefits. Remedying such tortious conduct is not an area of exclusive federal concern, but is traditionally left to the states. Put another way, the right Barker has to be free from such hostile or intimidating treatment exists independently from his rights under his ERISA plan. If such claims were held to be preempted by ERISA, Barker would be subject to such treatment with no available recourse, and a plan administrator could investigate a claim in all manner of tortious ways with impunity.
Id. at *4 (internal quotation marks omitted). Whether a claim
for intentional infliction of emotional distress is pre-empted
by ERISA appears to be a matter of first impression in this
circuit. The Court need not reach that question, however,
because even if such a claim was not pre-empted, the conduct
17 alleged by Mr. Wall does not rise to the level of outrageousness
needed to state a claim for intentional infliction of emotional
distress.
Mr. Wall seeks damages arising out of the “extreme
emotional distress” caused by “suddenly termination long-term
disability benefits [he] had received for eight years [and]
cutting off half [his] income with only a one-month notice” and
alleges that “[a]ll defendants engaged in extreme and outrageous
conduct that intentionally or recklessly caused [him] to suffer
extreme emotional distress.” Am. Compl., ECF No. 21 at 53.
With regard to the claim against Reliance, Mr. Wall alleges
that Reliance employees: (1) “went about their quest to
terminate [his] benefits with reckless disregard of the
probability of causing emotional distress”; and (2) “ignored
countless records showing [he is] Totally Disabled. They have
maintained false diagnoses for [him] in the files, trying to
minimize the severity of [his] medical conditions. They have
failed to honor the findings of a federal administrative law
judge, two Independent Medical Exams, and [Reliance] itself that
[he is] Totally Disabled. They have spent thousands of dollars
to try to inflict this distress on [him] – all for no good
reason.” Ex. 8 to Am. Compl., ECF No. 21-8 at 31-32. 2 He further
2 Mr. Wall “incorporate[s] all arguments concerning Defendant [Reliance’s] intentional infliction of emotional distress from
18 alleges that the “Labor Market Survey” Reliance crafted was
based on faulty determinations by Dr. Brodner. Id. at 15-18.
With regard to the claim against Dr. Brodner, Mr. Wall
alleges that “Dr. Brodner’s gross incompetence and gross
negligence led to a determination . . . terminating [his] . . .
benefits.” Ex. 9 to Am. Compl., ECF No. 21-9 at 3. 3 Mr. Wall
alleges that Reliance’s termination of his benefits was based on
a November 2019 peer review by Dr. Brodner that contains the
following alleged errors: (1) he relied on an outdated diagnosis
that was discredited by a 2016 IME, id. at 2; (2) his report
contains no evidence to indicate that Mr. Wall’s condition has
improved, id. at 2-3; (3) his opinion is contradicted by IMEs
that were conducted in 2016 and 2017, id. at 3; (4) he failed to
review the record of Mr. Wall’s most recent visit to the Center
for Sleep and Wake Disorders, id. at 3-4; (5) he failed to
review Mr. Wall’s sleep logs, id. at 4; (6) he ignored
additional disorders with which Mr. Wall is diagnosed, id. at 4-
5; (7) he failed to review a 2017 test result and therefore
[his] April 30, 2020, appeal letter.” Am. Compl., ECF No. 21 at 52. 3 Mr. Wall “incorporate[s] all arguments concerning Defendant Dr. Brodner’s intentional infliction of emotional distress from [his] Florida Department of Health complaint.” Am. Compl., ECF No. 21 at 52. Exhibits 8 and 21 to the Amended Complaint contain the same allegations regarding the errors in Dr. Brodner’s peer review; the Court cities to appeal letter at Exhibit 8 to the Amended Complaint for ease of reference.
19 erroneously states that Mr. Wall’s current treatment plan
includes “management with CPAP,” id. at 5-6; (7) his report
indicates that Mr. Wall currently takes a number of medications
that [he] not taken for years, id. at 5-6; (8) he faulted Mr.
Wall for not using CPAP based on a sleep specialist’s
recommendation, id. at 6; (9) he failed to review Social
Security Administration records regarding Mr. Wall’s disability
determination, id. at 6-7; (10) he failed to consider
conclusions from a 2017 psychotherapy report indicating that Mr.
Wall is compliant with his treatment, id. at 7-8; (11) he failed
to review key sources including the IME’s by Dr. Barnes and
Singleton, sleep logs, recent medical records, the Social
Security legal judgment, and sleep data graphs, id. at 8-9; (12)
he failed to provide support for his opinion that Mr. Wall “does
have work capacity on a full-time basis for employment which
does not require consistent scheduling,” id. at 10; and (13) he
erroneously concluded that Mr. Wall could meet project deadlines
because he is able to maintain a travel blog and meet travel
schedule demands, id. at 11-14
Mr. Wall alleges that the decision to uphold the
termination determination was based on a peer review by Dr. Jiva
that contained the following alleged errors by Dr. Jiva 4: (1) he
4 Mr. Wall “incorporate[s] all arguments concerning Defendant Dr. Jiva’s intentional infliction of emotional distress from [his]
20 “lied” when he claimed to be a sleep specialist, Ex. 22 to Am.
Compl., ECF No. 22-21 at 7; (2) he reviewed old records that are
irrelevant to Mr. Wall’s current diagnosis, id. at 8;(3) he
failed to review Mr. Wall’s sleep logs, id.; (4) he failed to
review other important records, id.; (5) his review was not
independent because he reviewed biased documents, id. at 9; (6)
his review was based on a diagnosis that has been dismissed,
rather than his current diagnoses, id. at 9-10; (7) he failed to
examine the record of Mr. Wall’s most recent visit to the Center
for Sleep & Wake Disorders, id. at 10; (8) he ignored additional
disorders with which Mr. Wall is diagnosed, id. at 11-12; (9) he
erroneously stated that Mr. Wall has not undergone
chronotherapy, id. at 12-13; (10) he erroneously stated that Mr.
Wall was not compliance with light therapy and melatonin
treatments, id. at 13; (11) he ignored Mr. Wall’s experience
taking Ritalin and Nuvigil, which he discontinued taking upon
the advice of physicians, id. at 13-14; (12) he erroneously
stated that Mr. Wall did not do an actigraphy study, id. at 13;
(13) he erroneously stated that Mr. Wall does not maintain sleep
logs, id. at 14-17; (14) he made a number of miscellaneous
errors, id. at 17-18; (15) he erroneously stated that Mr. Wall
should be able to “follow[] a strict sleep hygiene routing,” id.
New York State Department of Health complaint.” Am. Compl., ECF No. 21 at 52.
21 at 19; (16) he failed to review Mr. Wall’s Social Security
Administration records, id. at 19; (17) he ignored relevant
medical opinions, id. at 19, 20; (18) he stated that Mr. Wall’s
“prognosis is fair” despite there being no evidence to support
it, id. at 19; and (19) he erroneously concluded that Mr. Wall
has the capacity to work on a full time basis, id. at 21-24.
“To succeed on a claim of intentional infliction of
emotional distress, a plaintiff must show (1) extreme and
outrageous conduct on the part of the defendant which (2)
intentionally or recklessly (3) causes the plaintiff severe
emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189
(D.C. 2013) (internal quotation marks omitted). “The conduct
must be so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized
community.’” Id. (quoting Drejza v. Vaccaro, 650 A.2d 1308, 1312
n.10 (D.C. 1994) (quoting Restatement (Second) of Torts § 46
cmt. d (1965))). “The ultimate question is whether the
recitation of the facts to an average member of the community
would arouse his [or her] resentment against the actor, and lead
him [or her] to exclaim ‘Outrageous!’ ” Purcell v. Thomas, 928
A.2d 699, 711 (D.C. 2007) (internal quotation marks omitted)
(alterations original).
22 The Court by no means discounts the emotional distress that
Mr. Wall alleges that the termination of his benefits caused
him. He has alleged in great detail numerous errors in Dr.
Brodner’s and Dr. Jiva’s reports, upon which Reliance allegedly
relied in making its termination decision and then affirming
that decision on appeal. However, those errors do not amount to
the kind of outrageous behavior that needs to be alleged to
state a claim for intentional infliction of emotional distress.
In contrast with Dasie, the conduct Mr. Wall alleges does not
rise to the level of outrageous conduct alleged there, where the
plaintiff alleged that the defendant “falsely accus[ed him] of
lying about his disability, urg[ed him] to take experimental
medications, induc[ed him] to increase his medications, forc[ed
him] to undergo a litany of rigorous medical examinations
without considering their results, and pressur[ed him] to engage
in further medical testing that it knew would cause ... pain,
emotional distress and anxiety.” Dasie, 2015 WL 6954915, at *4.
And in contrast with Barker, he does not allege “humiliating,
shameful, and intentional harassment . . . during more than one
phone call. Barker, 2007 WL 2192298, at *4. Mr. Wall alleges
numerous errors by Reliance, Dr. Brodner, and Dr. Jiva, but does
not allege “conduct . . . so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
23 intolerable in a civilized community.” Armstrong, 80 A.3d at 189
(internal quotation marks omitted).
Complaint is DENIED as to his intentional infliction of
emotional distress claims against Reliance, Dr. Brodner, and Dr.
Jiva as those claims would not survive a motion to dismiss.
3. Count IV: Negligence Against All Defendants
Mr. Wall alleges that Reliance was negligent when it
improperly terminated his benefits, and incorporating the
allegations supra Section III.B.2 regarding Dr. Brodner and Dr.
Jiva, alleges that they were negligent because of the alleged
errors in their peer review reports. Am. Compl., ECF No. 21 at
56-57.
To state a claim for negligence under District of Columbia
law, Mr. Wall must allege “(1) the existence of a duty owed by
the defendant to the plaintiff, (2) a negligent breach of that
duty by the defendant, and (3) an injury to the plaintiff (4)
proximately caused by the defendant's breach.” Powell v.
District of Columbia, 602 A.2d 1123, 1133 (D.C. 1992).
With regard to Reliance, Mr. Wall alleges that: (1)
Reliance owed a duty to “ensure it continued [his] long-term
disability benefits as provided by the policy since [he]
remain[s] Totally Disabled”; (2) it negligently breached that
duty by improperly terminating his benefits; (3) he was injured
24 by that breach; and (4) Reliance’s “negligence in improperly
terminating [his] benefits was the direct and proximate” cause
of his injuries. Am. Compl., ECF No. 21 at 56. With regard to
Dr. Brodner and Dr. Jiva, Mr. Wall alleges that the they “owe[d]
a reasonable duty of care to ensure they performed factually
accurate, independent ‘peer reviews’ of [his] medical records
under contract” with Reliance. Mot. ECF No. 21 at 57.
As instructed by the D.C. Circuit, the Court asks if the
common law negligence claims “conflict[] with the provisions of
ERISA or operate[] to frustrate its objects.” VanderKam, 776
F.3d at 890. The Court concludes that they do. First, the claims
conflict with ERISA’s civil enforcement provision, which
provides that “[a] civil action may be brought—(1) by a
participant or beneficiary—... (B) to recover benefits due to
him under the terms of his plan, to enforce his rights under the
terms of the plan, or to clarify his rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B).
Pursuant to this provision, courts consider whether the denial
of benefits by a plan administrator was a reasonable one based
on the evidence before the administrator at the time the
decision was made. Soland v. George Washington University, 916
F. Supp. 2d 33, 39 (D.D.C. 2013); see also Marcin v. Reliance
Standard Life Insurance Company, 861 F.3d 254, 267 (2017)
(finding that Reliance acted unreasonably in denying disability
25 benefits). Mr. Wall’s allegations wholly pertain to the manner
in which Reliance made its decision to terminate his benefits.
Second, the claims “supplement[] . . . the ERISA civil
enforcement remedy,” Aetna Health Inc. v. Davila, 542 U.S. 200,
209 (2004); because they ask the Court to review the manner in
which the termination decision was made. Accordingly, these
claims “conflict[] with the clear congressional intent to make
the ERISA remedy exclusive.” Davila, 542 U.S. at 209; see also
Olivo v. Elky, 646 F. Supp. 2d 95 (D.D.C. 2009) (dismissing
plaintiffs’ common law negligence claim because “the wrongdoing
alleged is by Plan personnel in the course of the administration
of the Plan.”).
Complaint is DENIED as to his negligence claims against
Reliance, Dr. Brodner, and Dr. Jiva as those claims would not
survive a motion to dismiss.
4. Count V: Harassment Against Reliance, Count VI: Invasion of Privacy Against Reliance
Mr. Wall alleges that Reliance hired private investigators
in 2015, 2017, and 2019 at a cost of $2,207 for “three
investigations into [his] personal life . . . .” Ex. 8 to Am.
Compl., ECF No. 21-8 at 20-22. With regard to the 2019
background investigation conducted by Claims Bureau USA, Mr.
Wall points to the following conduct by the investigators to
26 support these claims: (1) review of his travel blog; (2) review
of his Facebook timeline; (3) database research of his “living
situation”; (4) aerial and street-view imagery of his home; (5)
telephone numbers of Mr. Wall’s housemates and an offer to
contact them to “obtain additional information pertaining to the
claimant” but no allegation that they were contacted; (6)
research into whether Mr. Wall owns a motor vehicle registered
in the District of Columbia; (7) research into cruise dates
based on Mr. Wall’s travel blog and an offer to monitor the
travel blog; (8) a three-day surveillance “action plan” but no
allegation that the surveillance took place; (9) review of Mr.
Wall’s “Flight Memory profile, YouTube channel, Flickr
photosharing website . . . , Craisglist, Recyclyer, Penny Saver,
Oodle, ‘and numerous additional classified listing websites.’”
Id. at 22-23.
The United States Court of Appeals for the Ninth Circuit
has held that a certain state common law claim for invasion of
privacy was not preempted by ERISA. In Dishman v. UNUM Life Ins.
Co., 269 F.3d 974 (9th Cir. 2001), Mr. Dishman “successfully
applied for long-term disability benefits” and received them
from November 1993 until July 1995” when they were terminated
after UNUM “hired several private investigative agencies to do a
‘work and sports [sic] check’ on him.” Id. at 977-78. Mr. Disham
alleged that “UNUM was vicariously liable for the tortious
27 invasion of privacy committed by the investigative firms it
hired,” alleging
that an investigator retained by UNUM elicited information about his employment status by falsely claiming to be a bank loan officer endeavoring to verify information he had supplied; that investigators elicited personal information about him from neighbors and acquaintances by representing that he had volunteered to coach a basketball team; that investigators sought and obtained personal credit card information and travel itineraries by impersonating him; that investigators falsely identified themselves when caught photographing his residence; and that investigators repeatedly called his residence and either hung up or else dunned the person answering for information about him.
Id. at 979-98. The Court reasoned that “[Mr.] Dishman is not
seeking to obtain through a tort remedy that which he could not
obtain through ERISA [because] his damages for invasion of
privacy remain whether or not UNUM ultimately pays his claim.”
The Court further reasoned that
The fact that the conduct at issue allegedly occurred “in the course of UNUM's administration of the plan” does not create a relationship sufficient to warrant preemption. If that were the case, a plan administrator could “investigate” a claim in all manner of tortious ways with impunity. What if one of UNUM's investigators had accidentally rear-ended Dishman's car while surveiling him? Would the fact that the surveillance was intended to shed light on his claim shield UNUM and the investigator from liability? What if UNUM had tapped Dishman's phone, put a tracer on his car, or trained a video camera into his bedroom in an effort to obtain information? Must that be tolerated
28 simply because it is done purportedly in furtherance of plan administration? To ask the question is to answer it. Though there is clearly some relationship between the conduct alleged and the administration of the plan, it is not enough of a relationship to warrant preemption. We are certain that the objective of Congress in crafting Section 1144(a) was not to provide ERISA administrators with blanket immunity from garden variety torts which only peripherally impact daily plan administration.
Id. at 984. Whether a claim for invasion of privacy is pre-
empted by ERISA appears to be a matter of first impression in
this circuit. The Court need not reach that question, however,
alleged by Mr. Wall does not state a claim for invasion of
privacy.
Under District of Columbia law, the tort of invasion of
privacy—intrusion upon seclusion—has three elements: “(1) an
invasion or interference by physical intrusion, by use of a
defendant's sense of sight or hearing, or by use of some other
form of investigation or examination; (2) into a place where the
plaintiff has secluded himself, or into his private or secret
concerns; (3) that would be highly offensive to an ordinary,
reasonable person.” Wolf v. Regardie, 553 A.2d 1213, 1217 (D.C.
1989) (citations and internal citations omitted). Mr. Wall’s
allegations describe an investigation based on publicly
available information, much of which Mr. Wall himself made
29 publicly available, such as his YouTube channel, Facetime
timeline and his travel blog. “This tort was not created to
protect against the invasions alleged in this case—the garnering
of information from third parties, and the culling of facts from
public records.” Id. at 1218. Furthermore, the conduct alleged
does not amount to conduct that is “highly offensive to an
ordinary, reasonable person” because the information was
gathered from publicly-available information, including
information that Mr. Wall himself made publicly available. Mr.
Wall does not allege that his roommates were contacted, nor that
the surveillance plan was implemented.
Plaintiff has presented no authority supporting a common
law cause of action for “harassment” based on the allegations in
the Amended Complaint, and the Court is aware of none.
Complaint is DENIED as to his claims for harassment and invasion
of privacy as those claims would not withstand a motion to
dismiss.
5. Count VII: Medical Malpractice Against Dr. Brodner and Dr. Jiva
Mr. Wall asserts medical malpractice claims against Dr.
Brodner and Dr. Jiva, incorporating the allegations supra
Section III.B.2, and further alleges that neither doctor has
expertise in sleep disorders, and that they committed medical
30 malpractice in “fail[ing] to make a good-faith effort to
understand a patient’s ‘invisible diseases.’” Am. Compl., ECF
No. 21 at 59. Mr. Wall alleges that Dr. Brodner practices in
Florida and that Dr. Jiva practices in New York. Id. at 61.
Florida state law requires compliance with pre-suit
requirements for investigation, corroboration, and written
notice of a medical malpractice claim, see Largie v. Gregorian,
913 So.2d 635 (Fla. 3d DCA 2005); none of which Mr. Wall alleges
he has complied with, see generally Am. Compl., ECF No. 21.
“Florida law mandates the dismissal of a claim for medical
malpractice when the pre-suit requirements have not been
fulfilled.” Johnson v. McNeil, 278 F. App’x 866, 872 (11th Cir.
2008) (per curiam) (citation omitted) (noting that “the claimant
may cure the default and proceed with the suit as long as the
pre-suit requirements are fulfilled within the applicable
statute of limitations”).
Complaint is DENIED as to the medical malpractice claim against
Dr. Brodner as that claim would not survive a motion to dismiss
at this time.
To establish a prima facie case of medical malpractice
under New York State law, a plaintiff must allege “‘(1) the
standard of care in the locality where the treatment occurred,
(2) that the defendant[s] breached that standard of care, and
31 (3) that the breach of the standard was the proximate cause of
injury.’” Deadwyler v. North Shore Univ. Hosp. at Plainview, 55
A.D.3d 780, 781, 866 N.Y.S.2d 306 (quoting Berger v. Becker, 272
A.D.2d 565, 565, 709 N.Y.S.2d 418).
common law medical malpractice claim “conflicts with the
provisions of ERISA or operates to frustrate its objects.”
VanderKam, 776 F.3d at 890. The Court concludes that it does
not. First, the claim does not conflict with ERISA’s civil
enforcement provision because this claim is not related to the
denial of benefits, but rather alleges that Dr. Jiva’s conduct
breached the applicable standard of care. Second, the claim does
not “duplicate[], supplement[], [n]or supplant[] the ERISA civil
enforcement remedy,” 542 U.S. at 209; because it does not ask
the Court to review the manner in which the termination decision
was made, but rather to determine whether Dr. Jiva’s conduct
breached the applicable standard of care. Accordingly, this
claim does not “conflict[] with the clear congressional intent
to make the ERISA remedy exclusive.” Davila, 542 U.S. at 209;
see also Edelen v. Osterman, 943 F. Supp. 75, 76 (D.D.C. 1996)
(holding that medical malpractice claim “has too tenuous a
relationship to an employee benefits plan to support a finding
of preemption”).
32 Accordingly, Mr. Wall’s Motion for Leave to File an Amended
Complaint is GRANTED as to the medical malpractice claim against
Dr. Jiva.
IV. Conclusion
For the reasons explained above, the Motion for Leave to
File an Amended Complaint is GRANTED IN PART and DENIED IN PART.
Mr. Wall may proceed on his ERISA claims for: (1) interest on
the six months of withheld benefits; (2) clarification of his
right to future benefits; and (3) enforcing his rights under the
plan; and on his medical malpractice claim against Dr. Jiva. All
other claims are DISMISSED. An appropriate Order accompanies
this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge June 1, 2021