Rivera v. Unum Life Insurance Company of America

Filing 31

ORDER. ORDERED that the Motion to Clarify 22 is GRANTED IN PARTand DENIED IN PART. ORDERED that the Joint Motion to Modify 29 is GRANTED, by Magistrate Judge Kristen L. Mix on 7/9/12.(sgrim) Modified on 7/9/2012 to add document links. (sgrim, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02585-WYD-KLM
MARIA RIVERA,
Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Clarify Plaintiff’s Right to
Conduct Discovery [Docket No. 22; Filed May 10, 2012] (the “Motion to Clarify”) and the
Joint Motion to Modify Scheduling Order to Extend Deadline to File Motion for
Summary Judgment1 [Docket No. 29; Filed July 2, 2012] (the “Joint Motion to Modify”).
Defendant filed a Response in opposition to the Motion to Clarify on June 15, 2012 [#27],
and Plaintiff filed a Reply on June 29, 2012 [#28]. The Motion to Clarify is thus ripe for
review and referred to this Court for resolution. See [#23]. For the reasons stated below,
the Court GRANTS IN PART and DENIES IN PART Plaintiff’s Motion to Clarify, and
GRANTS the Joint Motion to Modify.
I. Background
Plaintiff filed the instant action to recover long-term disability and life insurance

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The Court believes that the title of the Motion to Modify is incorrect, as the text of the
Motion to Modify indicates that parties request an extension of time for the filing of Plaintiff’s
Opening Brief. See [#29] at 2. The Court thus disregards the title of the Motion to Modify and
issues an order regarding the requested relief stated therein.

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waiver of premium benefits to which she believes she is entitled pursuant to the policies of
her former employer, Fairfield Residential. Sched. Ord., [#11] at 2. Plaintiff asserts that
Defendant wrongfully terminated her benefits effective December 12, 2010 (long term
disability) and January 5, 2011 (life insurance waiver of premium), on the basis of evidence
indicating that Plaintiff could perform duties of certain other occupations. See id. at 4, 6.
Plaintiff internally appealed the decision, which was upheld on September 13, 2011,
thereby exhausting her administrative remedies. Id. at 4. This litigation followed.
Plaintiff seeks to supplement the Administrative Record [#12] with limited discovery
related to the alleged conflict of interest arising from Defendant’s dual role as the
administrator of the benefits plan and the payer of the benefits, focused on the following
three areas: (1) information regarding the physicians who reviewed Plaintiff’s receipt of
benefits; (2) information regarding “the individuals responsible for terminating [Plaintiff’s]
claim”; and (3) information regarding Defendant’s internal policies and procedures. See
[#22]. The Court addresses each request in turn, below.
II. Analysis
The parties agree that Defendant’s denial of benefits to Plaintiff is subject to
deferential review by the district court under an arbitrary and capricious standard. See
Sched. Ord., [#11]. Under this standard of review, a plan administrator's decision will be
upheld so long as it has a reasoned basis. Adamson v. Unum Life Insurance Co. of Am.,
455 F.3d 1209, 1212 (10th Cir. 2006). “Indicia of arbitrary and capricious actions include
a lack of substantial evidence, a mistake of law, and bad faith.” Buchanan v. Reliance
Standard Life Ins. Co., 5 F. Supp. 2d 1172, 1180 (D. Kan.1998). The Tenth Circuit, like a
majority of other courts, has held that “[i]n determining whether the plan administrator's
decision was arbitrary and capricious, the district court generally may consider only the
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arguments and evidence before the administrator at the time it made that decision.”
Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992); see also Hall
v. Unum Life Ins. Co. of Am., 300 F.3d 1197, 1201 (10th Cir. 2002); Perlman v. Swiss Bank
Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 981 (7th Cir. 1999); Miller
v. United Welfare Fund, 72 F.3d 1066, 1071 (2d Cir. 1995).
However, in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Supreme
Court recognized that when an insurer “both determines whether an employee is eligible
for benefits and pays benefits out of its own pocket ... [it] creates a conflict of interest.” Id.
at 108. Therefore, “a reviewing court should consider whether the plan administrator has
abused its discretion in denying benefits; and ... the significance of the factor will depend
upon the circumstances of the particular case.”

Id.

Plaintiff bears the burden of

demonstrating a conflict of interest. Fought v. Unum Life Ins. Co. of America, 379 F.3d
997, 1005 (10th Cir. 2004).
In accord with Glenn, courts in this district and elsewhere have allowed limited
discovery related to the conflict of interest issue. See Calvert v. Firstar Finance, Inc., 409
F.3d 286, 293 n.2 (6th Cir. 2005) (recognizing that bias on the part of the administrator may
be grounds for allowing discovery); Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 520
(1st Cir. 2005) (finding that “evidence outside the administrative record might be relevant
to a claim of personal bias by a plan administrator”); Almeida v. Hartford Life & Accident
Ins. Co., No. 09-cv-01556-ZLW-KLM, 2010 WL 743520, at *1 (D. Colo. Mar. 2, 2010)
(granting motion for limited discovery on conflict of interest issue); Dubrovin v. Ball Corp.
Consol. Welfare Benefit Plan for Employees, 626 F. Supp. 2d 1099, 1104-05 (D. Colo.
2008) (limited discovery related to possible conflict permitted); Kohut v. Hartford Life and
Accident Ins. Co., No. 08-cv-00669-CMA-MJW, 2008 WL 5246163, at *12 (D. Colo. Dec.
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16, 2008) (discovery allowed because conflict of interest may not appear on face of
administrative record); Paul v. Hartford Life and Accident Ins. Co., No. 08-cv-00890-REBMEH, 2008 WL 2945607, at *2 (D. Colo. July 28, 2008) (collecting cases). Evidence of a
conflict of interest may appear on the face of the plan, by evidence of improper incentives,
or through proof of a pattern or practice of unreasonably denying meritorious claims.
Glenn, 554 U.S. at 123 (Roberts, J.,concurring).
A.

Reviewing Physicians

Plaintiff included proposed interrogatories and requests for production with her
Motion. See [#22-1]. Interrogatories 5-12 and Requests for Production 6 and 7 concern
information regarding the four physicians who provided opinions regarding Plaintiff’s
disability. [#22] at 6-8. Plaintiff bases her discovery requests as to these physicians on
case precedent indicating that physicians who perform reviews repeatedly for the same
benefit plan may be influenced by the incentive to maintain that business relationship, and
because of such influence, may be inclined to slant their medical reviews in favor of the
denial of benefits. See id.
Defendant objects to Interrogatories 7 and 9 and Requests for Production 6 and 10.
[#27] at 8. Defendant argues that Plaintiff is incorrect regarding the alleged conflict of
interest arising from Defendant’s “use of physician consultant,” and that the “raw data”
sought by these requests is irrelevant to the issue of a conflict of interest. Id. Defendant
contends that the “raw data” requests implicate “hundreds, if not thousands, of unrelated
ERISA plans and claims,” which are irrelevant to Plaintiff’s own claim of bias on part of the
physicians.

Id. at 12.

Further, Defendant asserts undue burden, because “the

documentation . . . is not maintained in a format that is accurately searchable. A manual
search would therefore be required.” Id. at 14.
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The Court has previously determined that the extent of any alleged conflict of
interest could be shown by how an ERISA defendant instructs third party consultants,
doctors and reviewers and/or whether the ERISA defendant provides incentives to such
third parties. Almeida, 2010 WL 743520, at *3 (citing Glenn, 554 U.S. at 123). Further, a
number of courts have concluded that the information sought by Plaintiff regarding third
parties is relevant to the conflict of interest issue. See, e.g., Hackett v. Standard Ins. Co.,
No. CIV. 06-5040, 2009 WL 3062996, at *8 (D.S.D. Sept. 21, 2009); Fischer v. Life Ins. Co.
of N. Am., No. 1:08-cv-0396-WTL-TAB, at *4 (S.D. Ind. Mar. 1, 2009); Hogan-Cross v.
Metro. Life Ins., 568 F. Supp. 2d 410, 414 (S.D.N.Y. 2008).
Similar to Almeida, and as applied to this matter, the undersigned agrees with the
conclusion of these courts. The third party information requested by Plaintiff is relevant to
the conflict of interest issue, with the exception of Request for Production 10, which seeks
copies of physician reviews of other potential benefits recipients. Interrogatory 7 is relevant
to the question of financial incentives provided to reviewing physicians; Interrogatory 9 is
relevant to the ratio of awarded benefits to reviews conducted by the physicians in question
(and should not be unduly burdensome to produce, considering that Defendant is already
producing information responsive to Interrogatories 6 and 8); and Request for Production
6 is relevant as to the instructions for review provided to the physicians by Defendant.
However, the Court does not believe that Request for Production 10 is relevant, particularly
in light of the discovery responsive to Interrogatories 6 and 8. Although Plaintiff contends
that documents responsive to Request for Production 10 may “provide insight into the
tendencies of [the physicians],” the Court is not convinced that copies of medical reviews
of other potential benefits recipients will contain indicia of bias as to the instant Plaintiff.
Therefore, Defendant is required to respond to Interrogatories 7 and 9 and Request for
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Production 6, but not Request for Production 10.
B.

Individual Employees

Interrogatories 1-2, 13-14, and 17, and Requests for Production 2-4 concern
information regarding “the individuals responsible for terminating [Plaintiff’s] claim.” [#22]
at 8. Defendant opposes Request for Production 2, concerning personnel files, and
Request for Production 4, concerning “targets or goals” in terms of closed or denied claims.
[#27] at 17.
As noted above, in his concurring opinion in Glenn, Chief Justice Roberts noted that
an ERISA conflict of interest “may be shown by evidence of other improper incentives.”
Glenn, 554 U.S. at 123. Therefore, Plaintiff is entitled to discovery on any financial
incentives given to employees involved in denying her claim. See Almeida, 2010 WL
743520 at *3; see also Sanders v. Unum Life Ins. Co. of N. Am., No. 4:08 CV 421 JLH,
2008 WL 4493043, at *4 (E.D. Ark. Oct. 2, 2008) (permitting discovery relating to any
financial incentives anyone might have had to deny plaintiff’s claim); Burgio v. Prudential
Life Ins. Co. of Am., 253 F.R.D. 219, 234 (E.D.N.Y. 2008) (allowing discovery of information
relating to compensation awards paid to individuals involved in denial of plaintiff’s claim);
see also Fischer, 2009 WL 734705, at *4 (collecting cases). Thus, Defendant must
respond to Request for Production 4.
However, the Court does not find compelling Plaintiff’s argument regarding the
relevance of individual employees’ complete personnel files. The Tenth Circuit has
recognized that “personnel files often contain sensitive personal information ... and it is not
unreasonable to be cautious about ordering their entire contents disclosed willy-nilly.”
James v. Heuberger Motors, Inc., No. 10-cv-01648-CMA-KLM, 2011 WL 334473, at *5 (D.
Colo. Jan. 28, 2011) (citing Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.
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2008)). Nevertheless, “relevancy is broadly construed and a request for discovery should
be considered relevant if there is any possibility that the information sought may be relevant
to the claim or defense of any party.” Id. (citing Cardenas v. Dorel Juvenile Group, Inc.,
232 F.R.D. 377, 382 (D. Kan. 2005)).
Plaintiff argues that “[e]vidence of these individuals’ biases could certainly be
contained in a personnel file.” [#28] at 12. This argument raises the specter of a fishing
expedition, rather than a reasoned request for discovery. As stated above, financial
incentives may demonstrate bias on part of employees, and Plaintiff will obtain information
regarding financial incentives in response to the other Interrogatories and Requests for
Production relevant to this issue. Thus, the Court sees no need to allow “willy-nilly”
production of individual employees’ personnel files, and Defendant need not respond to
Request for Production 2.
C.

Internal Guidelines and Procedures

Interrogatories 11, 15, and 16, and Requests for Production 8 and 9 concern
discovery of Defendant’s internal guidelines and procedures. [#22] at 9. Defendant is
willing to produce its claims manual, but no additional responsive information, and
Defendant objects to producing a witness for a Rule 30(b)(6) deposition as to the claims
manual. [#27] at 18. Plaintiff does not address Defendant’s position in her Reply. See
[#28].
Review of the relevant Interrogatories and Requests for Production demonstrates
to the Court that Defendant’s production of its claims manual, in addition to the discovery
responsive to the other requests at issue in this Motion, is adequate. Interrogatory 11
appears to the Court to be duplicative of Request for Production 6, and the Court assumes
that the information requested in Interrogatories 15 and 16 is contained within the claims
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manual. Further, production of the claims manual also appears to satisfy Requests for
Production 8 and 9. Therefore, the Court finds that Defendant need not respond to
Interrogatories 11, 15, and 16, or Requests for Production 8 and 9, other than by producing
its complete claims manual. See also Almeida, 2010 WL 743520 at *4 (ordering production
of plan administrator’s internal guidelines and policies).
III. Conclusion
IT IS HEREBY ORDERED that the Motion to Clarify [#22] is GRANTED IN PART
and DENIED IN PART as stated herein. Defendant is not required to respond to Plaintiff’s
Interrogatories 11, 15, and 16, or Requests for Production 2, 8, 9, or 10 (other than
production of the complete claims manual).
IT IS FURTHER ORDERED that the Joint Motion to Modify [#29] is GRANTED. The
deadline for filing Plaintiff’s Opening Brief is extended up to and including October 9, 2012.
Dated: July 9, 2012

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