Frame v. Hartford Life and Accident Insurance Company
Filing
34
ORDER granting 22 Defendant Hartford Life and Accident Insurance Company's Dispositive Motion for Summary Judgment and denying 24 Plaintiff Deborah Frame's Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant Hartford Life and Accident Insurance Company and to close this case. Signed by Judge Virginia M. Hernandez Covington on 6/27/2017. (KM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DEBORAH G. FRAME,
Plaintiff,
v.
Case No. 8:16-cv-2299-T-33AAS
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.
___________________________/
ORDER
This matter comes before the Court upon consideration of
two cross-Motions for Summary Judgment: (1) Defendant Hartford
Life and Accident Insurance Company’s Dispositive Motion for
Summary Judgment with Statement of Undisputed Facts, filed on
March
13,
2017
(Doc.
#
22),
Plaintiff
Deborah
Frame’s
Response, filed on April 12, 2017 (Doc. ## 25, 26), and
Hartford’s Reply, filed on April 26, 2017 (Doc. # 29); and (2)
Plaintiff’s Motion for Summary Judgment, filed on March 13,
2017 (Doc. # 24), Hartford’s Memorandum in Opposition, filed
on April 13, 2017 (Doc. # 28), and Plaintiff’s Reply, filed on
April 26, 2017 (Doc. # 30).
On June 12, 2017, Hartford filed
a Notice of Supplemental Authority, Prelutsky v. Greater Ga.
Life Ins. Co., No. 16-15900, ___ F. App’x ___, 2017 WL 2406730
(11th Cir. June 2, 2017).
(Doc. # 31).
For the reasons that
follow, Hartford’s Motion for Summary Judgment is GRANTED and
Plaintiff’s Motion for Summary Judgment is DENIED.
I.
Background
At 9:00 p.m. on September 2, 2015, Ordeth Frame was
fatally
injured
Florida.
in
a
single-car
H1208).1
(H1926,
collision
Frame’s
in
car
Bradenton,
traveled
off
University Parkway, struck at least one tree, and rolled over.
(H1926,
H1208).
Frame
was
transported
by
ambulance
to
Lakewood Ranch Medical Center, where he was pronounced dead at
10:04 p.m. (H1926). The autopsy report listed cause of death
as blunt impact injuries to the head, neck, torso, and
extremities.
(H1928).
At the time of the accident, Frame was insured under an
Accidental
Death
and
Dismemberment
Policy
through
employer, which was issued by Defendant Hartford.
On
September
22,
2015,
Plaintiff,
who
is
his
(H54-H55).
Frame’s
wife,
submitted a claim under the policy for the principal sum of
$500,000.
(H2276-H2281).
denied the claim.
brought
pursuant
On October 19, 2015, Hartford
(H2284).
to
the
The instant action, which is
Employee
Retirement
Income
and
Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), turns on
whether Hartford lawfully denied benefits under the policy.
In
denying
Plaintiff’s
claim,
Hartford
invoked
the
policy’s intoxication exclusion, which states that the policy
“does not cover any loss caused or contributed to by . . .
1
Citations to “H####” refer to the administrative
record, which is filed at Doc. # 23.
2
Injury sustained while Intoxicated.”
(H66-H67).
The policy
defines “Intoxicated” as follows:
Intoxicated means:
1) the blood alcohol content;
2) the results of other means of testing blood alcohol
level; or
3) the results of other means of testing other
substances;
that meet[s] or exceed[s] the legal presumption of
intoxication, or under the influence, under the law of
the state where the accident occurred.
(H67).
Hartford relied on Frame’s autopsy report, which
listed his blood alcohol level as 0.149 gm/dL.
H1928).
(H2284,
Under Florida law, a blood alcohol level of 0.08 or
higher yields a legal presumption of “under the influence.”
See Fla. Stat. § 316.1934(2)(c).
On March 28, 2016, Plaintiff appealed Hartford’s decision
and submitted several new documents.
(H793-H796).
Key
evidence included affidavits from Frame’s financial advisor,
Marjorie DeCanio, and her husband Ron DeCanio, who dined with
Frame just before the accident.
(H794).
According to the
DeCanios, when they met Frame at approximately 6:45 p.m.,
“there was no indication whatsoever that [Frame] had consumed
any alcohol prior to dinner.”
(H798, H801).
While at the
restaurant, Frame drank water and two glasses of Chardonnay
wine “in a small standard wine glass,” and he ate Chinese food
and sushi.
(H798, H801).
The DeCanios averred that Frame
exhibited no indication that he was impaired when he left the
3
restaurant: his speech was fluent, his eyes were not bloodshot
or glassy, his balance was not impaired, and they smelled no
alcohol on his breath.
(H799, H802).
The dinner ended
between 8:30 p.m. and 8:45 p.m., approximately 15 to 30
minutes before the accident.
(H798-H799, H801-H802).
Plaintiff’s second piece of key evidence was a 19-page
report
from
Stefan
(H795, H1579-H1597).
Rose,
M.D.,
a
forensic
toxicologist.
Dr. Rose opined that based on Frame’s
weight of 225 pounds, Frame would have needed to consume ten
glasses of wine at dinner in order to achieve a blood alcohol
level of 0.149 gm/dL, and assuming that Frame consumed only
two glasses of wine, his blood alcohol level should have been
0.04 gm/dL or lower.
blood
alcohol
level
(H1596).
listed
Dr. Rose concluded that the
in
the
autopsy
report
was
“erroneous, inaccurate and unreliable for more than twenty
forensic reasons.”
(H1582).
Those reasons are summarized
below.
First, Dr. Rose observed that the hospital at which
Frame’s blood was tested, Sarasota Memorial Hospital (“SMH”),
possesses
only
accreditation.
a
clinical
(H1583).
accreditation,
not
a
forensic
Dr. Rose also observed that the
blood sample lacked an official chain-of-custody document in
violation of SMH’s own policies, and the evidence label on the
blood sample was not placed over the top of the tube, also in
violation of SMH policy.
(H1584).
4
Second, Dr. Rose raised questions about the source of the
blood sample.
The sample was described as a “peripheral”
blood sample, but it did not identify the anatomical source or
specify whether it was arterial or venous blood.
(H1585,
H1587).
Dr. Rose opined that this was critical information
because
arterial
blood
has
a
40%
or
higher
ethanol
concentration than venous blood during alcohol absorption, and
there also is a potential for a large variation in blood
alcohol
level
between
anatomic
sites.
(H1585-H1589).
According to Dr. Rose, multiple blood samples should have been
tested, which SMH failed to do.
(H1586, H1589).
With respect to the blood sample itself, Dr. Rose stated
that testing “detected the products of fermentation,” as
evidenced by two extra volatile organic compound peaks in the
chromatograms that were not present in the quality-control
chromatograms. (H1588, H1596). In addition, the blood sample
appeared to have been stored in a grey stopper tube, a type of
tube that contains less than the recommended amount of a
preservative that prevents fermentation.
(H1588-H1589).
In
light of these issues, Dr. Rose maintained that SMH should
have done further testing to determine the validity of the
sample.
(H1588-H1589).
Dr. Rose next questioned SMH’s testing methods. SMH used
two tests: enzyme assay testing and single-column headspace
gas chromatography with flame ionization detector.
5
(H1590).
Dr. Rose explained that enzyme assay testing is not approved
for forensic use, and it is particularly unreliable for
traumatic
“crush”
injuries
such
as
Frame’s
because
the
crushing produces extra lactate that in turn raises the levels
of the tested enzyme.
(H1590).
With respect to the gas
chromatography test, Dr. Rose stated that he was not aware of
any forensic lab using single-column gas chromatography;
rather, dual-column gas chromatography with mass spectrometry
is “the gold standard” for blood alcohol testing.
H1591, H1596).
(H1590-
And as a general matter, Dr. Rose maintained
that post-mortem blood testing does not necessarily predict
the blood alcohol level at the time of death due to various
factors including medication and fluid administration, trauma,
and
the
possibility
that
wine
contaminate the blood sample.
from
the
stomach
could
(H1587, H1595-H1596).
Finally, Dr. Rose questioned the validity of the test
result.
Dr. Rose opined that the chromatograms displayed
asymmetric peak shapes and significant tailing, rendering them
unreliable
and
“a
cause
of
inaccurate
quantitation
(measurement of the amount of ethanol in the blood sample).”
(H1591-H1592,
H1596).
Dr.
Rose
also
asserted
that
SMH
intentionally deleted potentially relevant data from the blood
sample, as evidenced by the notation, “Small Noise Peaks
Clipped.”
result
(H1591).
lacked
unreliable.
an
Dr. Rose further noted that the test
uncertainty
(H1594-H1595).
6
measurement,
rendering
it
In addition to Dr. Rose’s report, Plaintiff submitted
records
from
Manatee
County
Emergency
Medical
Services
(“EMS”), the emergency responders at Frame’s accident scene.
(H795).
Manatee County EMS estimated that Frame’s car was
traveling at 50 miles per hour.
conflicted
with
a
statement
in
(H1208).
an
That estimate
investigation
report
completed by Abby Andrus, the Chief Investigator for the
District Twelve Medical Examiner.
(H1926-H1927).
Andrus
reported that Corporal Carroll at the Florida Highway Patrol
(“FHP”) estimated that Frame was traveling 80 miles per hour
in a 45-mph zone while attempting to pass a vehicle on the
right side. (H1926). Corporal Carroll stated that there were
no signs of braking or evasive maneuvers and no adverse road
conditions, although he also observed that the road was not
well-lit and had no street lights.
(H1927).
A separate section in Andrus’s report noted that there
was “[n]o obvious odor of [alcohol],” without identifying the
source of that observation.
(H1925).
Corporal Carroll
reported that “wine was discovered on scene” and “intoxication
was suspected.”2
(H1927).
Andrus herself spoke with Frame’s
sister, who described him as an alcoholic.
2
(H1927).
Hartford’s summary-judgment filings repeatedly state
that there was wine in Frame’s car. (Doc. # 22 at 13, 15;
Doc. # 28 at 14 n.7, 15 n.8). Hartford points to no evidence
to support that statement.
7
After Hartford received Plaintiff’s appeal and supporting
documents, Laurie Tubbs, the appeals specialist, sent the file
back to the original claims examiner, Jeffrey Seltzer, to
review the new information.
(Doc. # 24 at 6-9; H549).
Seltzer and a supervisor characterized the evidence as “an
abundance of paper” with no new medical information, only Dr.
Rose’s “opinion.”
(H513-H514).
After Plaintiff contacted
Hartford to demand that the information be independently
reviewed as an appeal, consistent with Plaintiff’s March 28,
2016 letter, Hartford informed Plaintiff that it would treat
the matter as an appeal.
During
its
(H509, H513-H515).
review,
Hartford requested that two
independent physicians opine on the reliability of Frame’s
blood alcohol test result.
(H436-437, H502-503).
Through a
third-party vendor, Hartford first retained Ronald Wright,
M.D., a board-certified forensic pathologist.
(H454, H111).
Dr. Wright concluded that Dr. Rose’s opinion was “completely
incorrect” and that the blood alcohol test was reliable.
(H466-H469).
However, Plaintiff raised concerns about Dr.
Wright’s history, including several allegations of misconduct
during his tenure as the Broward County Medical Examiner.
(H454-H457).
Hartford informed Plaintiff that “a quality
review is occurring at the vendor and the report that has been
received is not a complete report.
not be relying on this report.”
8
Therefore, Hartford will
(H430).
Using a different third-party vendor, Hartford then
retained Richard Tovar, M.D., a board-certified physician in
emergency medicine with a sub-specialty certificate in medical
toxicology.
(H171, H117).
Plaintiff repeatedly requested
that Dr. Tovar and Hartford speak directly with Dr. Rose, but
Dr. Rose refused to speak with Dr. Tovar unless Plaintiff's
counsel was present. (H148, H168, H192-H193, H252). Hartford
then instructed Dr. Tovar to communicate with Dr. Rose in
writing, which Dr. Tovar did by submitting written questions
to Dr. Rose.
(H148, H153-H156, H168).
Dr. Rose’s answers to
the questions largely incorporated and re-stated the opinions
in his original report.
After
reviewing
(H153-H156).
Dr.
Rose’s
report
and
supplemental
answers, as well as Frame’s records, Dr. Tovar issued a fourpage opinion concluding that Frame’s blood result “can be
considered reliable.”
(H170).
In brief, Dr. Tovar opined
that “[t]he methods by which the blood ethanol specimen was
obtained [were] well within reasonable standard practice for
medical toxicology to be able to opine on one aspect of the
presence of clinical intoxication,” and that “[t]here is no
evidence that there was significant postmortem alterations of
the
resultant
incorrect
blood
sample
ethanol
level
identification,
such
as
incorrect
putrefaction,
lab
hardware
analysis, or inappropriate location of specimen tissue areas
or other interfering substances.”
9
(H170-H171).
Dr. Tovar
further opined that “the blood sample analysis was a trusted
clinical level,” and that “these blood ethanol tests are also
commonly used by medical toxicologists and pathologists to
opine on the cause and manner of death in medical toxicology.”
(H170).
Dr. Tovar concluded as follows:
The combination of the observed results of the
vehicle crash, witness reports of Mr. Frame
drinking ethanol in a time period proximal to the
crash, and the presence of ethanol in his system
all correlate with my opinion, made to a reasonable
degree of medical certainty, that the decedent was
intoxicated with ethanol at the time of the crash.
Furthermore, the use of ethanol was a significant
factor in the crash and the fatal results.
(H171).
By
letter
dated
June
24,
2016,
Hartford
Plaintiff that the initial denial would stand.
notified
(H111).
The
letter recounted the findings in the autopsy report, Andrus’s
investigation report for the Medical Examiner, the DeCanios’
statements about their dinner with Frame, as well as the
opinions of Dr. Rose, Dr. Wright, and Dr. Tovar. (H112-H120).
Hartford acknowledged Plaintiff’s argument, based on the
opinion of Dr. Rose, that the blood alcohol test was not
reliable, but Hartford determined that “per review we find the
result of a BAC of 0.149 can be considered reliable.” (H120).
On August 11, 2016, Plaintiff filed the instant action
pursuant to ERISA, 29 U.S.C. § 1132(a)(1)(B), to recover
benefits under the policy.
(Doc. # 1).
Plaintiff requests
a “Supplemental” principal sum of $585,000 and an additional
10
benefit for “Seat Belt and Air Bag Coverage” in the amount of
$15,000, for a total amount of $600,000.
H56).
(Doc. # 24 at 22;
On March 13, 2017, the parties filed their respective
Motions for Summary Judgment (Doc. ## 22, 24), which are now
ripe for review.
II.
Legal Standard
Pursuant
to
29
U.S.C.
§
1132(a)(1)(B),
an
ERISA
participant or beneficiary may bring a civil action in order
to recover benefits under the terms of a benefit plan. In
reviewing
a
benefits-denial
decision,
operates as an appellate tribunal.
a
district
court
Crume v. Metro. Life Ins.
Co., 417 F. Supp. 2d 1258, 1272 (M.D. Fla. 2006).
As a
result, the usual summary-judgment standards do not apply,
such as whether a genuine dispute of material exists.
Id.;
Leahy v. Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002);
Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1354 n.4
(11th Cir. 2011) (citing Leahy with approval).
“Where a plan administrator has denied a claim because of
a policy exclusion, as [Hartford] did here, the burden is on
the
administrator
coverage.”
to
show
that
the
exclusion
prevents
Prelutsky v. Greater Ga. Life Ins. Co., No. 16-
15900, ___ F. App’x ___, 2017 WL 2406730, at *3 (11th Cir.
June
2,
2017)
(internal
quotation
11
marks
omitted).
The
Eleventh Circuit employs a six-part framework to analyze a
benefits denial:
(1) Apply the de novo standard to determine whether
the claim administrator’s benefits-denial decision
is “wrong” (i.e., the court disagrees with the
administrator’s decision); if it is not, then end
the inquiry and affirm the decision.
(2) If the administrator’s decision in fact is “de
novo wrong,” then determine whether he was vested
with discretion in reviewing claims; if not, end
judicial inquiry and reverse the decision.
(3) If the administrator’s decision is “de novo
wrong” and he was vested with discretion in
reviewing
claims,
then
determine
whether
“reasonable” grounds supported it (hence, review
his decision under the more deferential arbitrary
and capricious standard).
(4) If no reasonable grounds exist, then end the
inquiry and reverse the administrator’s decision;
if reasonable grounds do exist, then determine if
he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry
and affirm the decision.
(6) If there is a conflict, the conflict should
merely be a factor for the court to take into
account when determining whether an administrator’s
decision was arbitrary and capricious.
Blankenship, 644 F.3d at 1354-1355.
It
is
undisputed
that
Hartford
was
vested
with
discretion. (Doc. # 24 at 3). “Therefore, even assuming that
[Hartford’s]
decision
was
‘de
novo
wrong’
.
.
.
the
dispositive question is whether [Hartford’s] decision was
arbitrary and capricious.” Prelutsky, 2017 WL 2406730, at *4.
The Court will thus begin the analysis at step three.
12
Id.;
Till v. Lincoln Nat’l Life Ins. Co., No. 16-14799, ___ F.
App’x ___, 2017 WL 393257, at *2 (11th Cir. Jan. 30, 2017).
III. Discussion
In this case, the relevant question is whether Hartford’s
reliance on the intoxication exclusion was arbitrary and
capricious.3
In particular, the Court must resolve whether
Hartford possessed a reasonable basis to conclude that Frame’s
blood alcohol content met or exceeded the legal presumption of
intoxication in Florida.
Prelutsky, 2017 WL 2406730, at *5.
For the reasons that follow, the Court holds that Hartford
possessed a reasonable basis to determine that the blood
alcohol test was reliable and that Plaintiff’s blood alcohol
content met or exceeded 0.08 gm/dL.
At the outset, Hartford argues that Frame’s blood alcohol
test provides a reasonable basis for Hartford’s decision,
notwithstanding Plaintiff’s challenges to the accuracy of the
test. (Doc. # 22 at 12). But as Plaintiff correctly responds
(Doc. # 25 at 3-6), the cases on which Hartford relies are
distinguishable because the plaintiffs raised no meaningful
challenge to the blood alcohol test, at least while the claim
3
The parties disagree, in passing, about whether
Hartford was required to demonstrate that intoxication
“caused” Frame’s injury, but Plaintiff concedes that she has
not raised a causation argument. (Doc. # 28 at 4-5; Doc.
# 30 at 3). The Court therefore does not address the issue.
13
was
pending
before
the
plan
administrator.4
Here,
by
contrast, Plaintiff vigorously contested the reliability of
the test result during the administrative proceedings.
As plan administrator, Hartford was required to “fully
investigate”
Plaintiff’s
claim
and
“make
determination after a diligent investigation.”
a
reasoned
Capone v.
Aetna Life Ins. Co., 592 F.3d 1189, 1199-1200 (11th Cir.
2010).
The crux of Plaintiff’s argument is that Hartford
failed to conduct a sufficiently thorough investigation into
the reliability of the blood alcohol test. (Doc. # 24 at 3, 6,
13, 22; Doc. # 30 at 2).
Plaintiff’s specific objections are
reviewed below.
First, Plaintiff faults Hartford for failing to speak
directly with the DeCanios and for failing to explain why
Hartford discredited their affidavits. (Doc. # 24 at 10, 21).
4
Stamp v. Metro. Life Ins. Co., 466 F. Supp. 2d 422,
426 (D.R.I. 2006) (noting, as part of background facts, that
medical
examiner’s
blood
alcohol
evidence
provided
unequivocal evidence of intoxication, where intoxication was
not disputed); Sawyer v. Potash Corp. of Saskatchewan
(Potashcorp), 417 F. Supp. 2d 730, 741 (E.D.N.C. 2006)
(holding that coroner’s blood alcohol results provided
substantial evidence of intoxication where the plaintiff
submitted no argument or evidence to the contrary); Veal v.
Nationwide Life Ins. Co., No. 5:09-CV-356/RS/MD, 2010 WL
1380170, at *3 (N.D. Fla. Mar. 31, 2010) (deferring to
toxicology
report
despite
plaintiff’s
unspecified
objections); Cornish v. U.S. Life Ins. Co. of City of N.Y.,
No. 3:06-cv-344-DW, 2009 WL 3231351, at *13 (W.D. Ky. Sept.
30, 2009) (declining to consider evidence not provided to the
plan administrator regarding reliability of post-mortem blood
alcohol testing).
14
But
Hartford
considered
the
DeCanios’
affidavits,
demonstrated by the June 14, 2016, denial letter.
H116-H117).
rely
on
as
(H113,
And Hartford was well within its discretion to
objective
toxicology
tests
over
the
DeCanios’
statements that they observed no signs of intoxication —
particularly given that the DeCanios themselves admitted that
Frame
consumed
alcohol
immediately
before
the
accident.
Capone, 592 F.3d at 1200 (holding that plan administrator was
entitled to rely on toxicology tests over the affidavit of an
eye witness); River v. Edward D. Jones Co., 646 F.3d 1029,
1033–34 (8th Cir. 2011) (same).
Moreover, the DeCanios did
not witness the crash, nor did they witness Frame’s activities
prior to dinner or the events between Frame’s departure from
the restaurant and the crash.
Prelutsky, 2017 WL 2406730, at
*5 (noting that plan administrator was entitled to discredit
affidavit from a person who did not witness the accident).
Plaintiff also points out that Hartford did not obtain a
copy of the FHP’s investigation report, despite initially
requesting a copy, nor did Hartford speak with Corporal
Carroll or Andrus.
explain
how
these
(Doc. # 24 at 11).
alleged
failings
But Plaintiff does not
suggest
a
lack
of
diligence. Hartford possessed Andrus’s investigation report,
which included the FHP’s findings from the accident.
This is
not a case in which Hartford collected “no evidence” about the
relevant events and chose to instead rely on unsupported
15
inferences. Cf. Capone, 592 F.3d at 1200-1201 (observing that
plan
administrator
conducted
no
investigation
about
circumstances leading to fatal accident, but instead relied on
inferences and supposition); Melech v. Life Ins. Co. of N.
Am., 739 F.3d 663, 675-76 (11th Cir. 2014) (remanding to plan
administrator
where
the
claimant’s
file
from
the
Social
Security Administration was ignored).
Further, a plan administrator “is entitled to choose an
apparently more reliable source of information.”
Brown v.
Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1572
(11th Cir. 1990), abrogated on other grounds, Metro. Life Ins.
Co. v. Glenn, 554 U.S. 105 (2008).
The FHP was responsible
for investigating the crash, and the FHP had the benefit of
being present at the scene.
And even Plaintiff does not
dispute the most salient facts: Frame was drinking shortly
before the crash, and Frame’s car traveled off the road
despite the absence of adverse road conditions.
Plaintiff
next
argues
that
Hartford neglected to
independently investigate the origin and integrity of the
blood sample by contacting the Medical Examiner and SMH.
(Doc. # 24 at 10-11, 17, 19).
But again, Plaintiff cites no
authority holding that a plan administrator is required to
undertake this type of searching inquiry.
To the contrary,
courts routinely hold that a plan administrator may rely on a
blood alcohol test without verifying chain of custody or
16
resolving challenges to testing methodology.
See, e.g., Tran
v. United of Omaha Life Ins. Co., 780 F. Supp. 2d 965, 972-74
(D. Neb. 2011) (holding that there was insufficient evidence
to find that administrator abused its discretion in relying on
blood
test
regarding
by
the
methodology);
hospital,
despite
integrity
of
the
plaintiff’s
sample
and
arguments
testing
Arnold ex rel. Hill v. Hartford Life Ins. Co.,
542 F. Supp. 2d 471, 479-80 (W.D. Va. 2008) (holding that
insurer was not required to verify chain of custody and origin
of sample).
In this case, Hartford acted reasonably by
obtaining two independent medical opinions to address the
issues raised by Dr. Rose, which included objections to the
integrity and origin of the blood sample.
On that front, Plaintiff raises a number of challenges to
Hartford’s handling of the experts.
As a preliminary matter,
Plaintiff challenges Dr. Tovar’s qualifications pursuant to
Rule 702 of the Federal Rules of Evidence and the standard set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993), which govern the admissibility of expert
testimony at trial.
(Doc. # 30 at 6).
However, Plaintiff
cites no authority to support the application of Rule 702 and
Daubert to an ERISA case.
See Vanwright v. First Unum Life
Ins. Co., 740 F. Supp. 2d 397, 404 (S.D.N.Y. 2010) (“Rule 702
and Daubert do not apply in ERISA actions.”); accord Dowdy v.
17
Hartford Life & Acc. Ins. Co., 458 F. Supp. 2d 289, 302 n.13
(S.D. Miss. 2006) (citing cases).
Although Hartford was not required to conduct a Daubert
analysis, Dr. Tovar must be competent to assess the blood
alcohol test result.
Helms v. Gen. Dynamics Corp., 222 F.
App’x 821, 828 (11th Cir. 2007) (“We have been critical of a
nurse’s review when a meaningful review dictated assessment of
specialized tests beyond a nurse’s training.”)
notes
that
Tubbs
specifically
requested
that
Plaintiff
a
forensic
pathologist review the blood alcohol test, but Hartford’s
third-party vendor assigned Dr. Tovar, a medical toxicologist
rather than a forensic toxicologist. (Doc. # 24 at 10-11, 13,
16-17; see H502, H436).
of
experience
is
Plaintiff also questions what degree
denoted
by
Dr.
certificate” in medical toxicology.
Tovar’s
“sub-specialty
(Doc. # 24 at 13; Doc.
# 30 at 6).
In the disability context, case law is clear that ERISA
does not require a plan administrator to obtain an opinion
from a physician in the same specialty as the plaintiff’s
physician, and Plaintiff does not suggest that a different
principle would govern a claim for death benefits.
Burtch v.
Hartford Life & Acc. Ins. Co., 314 F. App’x 750, 753 n.3 (5th
Cir. 2009) (disability appeal).
Given that Dr. Tovar has
training in toxicology — albeit medical toxicology rather than
forensic toxicology — the Court perceives no reason why Dr.
18
Tovar would not be qualified to review a blood alcohol test
and respond to Dr. Rose’s specific concerns. Wakkinen v. UNUM
Life Ins. Co. of Am., 531 F.3d 575, 582 (8th Cir. 2008)
(“Wakkinen points to no evidence that calls into question the
expertise of Dr. Jacobson personally or of a doctor who
specializes in occupational medicine to offer an opinion on
the condition of fibromyalgia.”).
If Plaintiff wished to
inquire further into Dr. Tovar’s training and experience,
Plaintiff was entitled to conduct discovery on that issue.
See,
e.g.,
Croyle
v.
Prudential
Ins.
Co.
of
Am.,
No.
12-60684-CIV, 2012 WL 12888403, at *3 (S.D. Fla. Dec. 28,
2012) (allowing discovery on medical director’s training and
qualifications).
Plaintiff next argues that neither Dr. Tovar nor Hartford
spoke directly with Dr. Rose.
(Doc. # 24 at 10-11).
Again,
however, Plaintiff cites no relevant authority to support the
existence of such a duty under ERISA.
Cf. Turner v. Am.
Airlines, Inc., No. 10-80623-CIV, 2011 WL 1542078, at *9 (S.D.
Fla. Apr. 21, 2011) (in disability context, holding that ERISA
does not require a plan administrator to contact a treating
physician).
Regardless, Dr. Tovar did attempt to speak with
Dr. Rose, but Dr. Rose refused to speak with Dr. Tovar unless
Plaintiff’s counsel was present. (H148, H168). Hartford then
instructed Dr. Tovar to communicate with Dr. Rose in writing,
19
which
Dr.
Tovar
accomplished
questions to Dr. Rose.
by
submitting
five
written
(H148, H153-H156, H168).
Plaintiff does not dispute that written questions are a
common feature of ERISA claims administration.
E.g., Pini v.
First Unum Life Ins. Co., 981 F. Supp. 2d 386, 395 (W.D. Pa.
2013)
(noting
information
that
through
cardiologist).
plan
administrator
written
questions
sought
to
the
additional
claimant’s
Plaintiff instead contends that the questions
were “rudimentary” and only serve to bolster Plaintiff’s
argument that Dr. Tovar is unqualified to render an opinion on
forensic toxicology.5
18).
(Doc. # 30 at 5; Doc. # 25 at 14-16,
Yet, as explained below, Dr. Rose’s own opinions were
primarily delivered in general and hypothetical terms.
Under
those circumstances, Dr. Tovar’s questions were reasonable and
sufficiently thorough.
Finally, Plaintiff argues that Dr. Tovar and Hartford
failed to specifically address and discount each of Dr. Rose’s
opinions.
(Doc. # 24 at 10-11, 14-21).
5
In particular,
The questions were: (1) Did Mr. Frame have ANY ethanol
in his blood at the time of his death?; (2) Did Mr. Frame
have a prohibited amount of ethanol (0.08 g/dl) at the time
of his death?; (3) Did the witnesses observing Mr. Frame[’]s
drinking of ethanol before his death correctly observe the
correct amount of ethanol that the decedent drank? Could
this observation of drinking by the decedent [have] been
underestimated or incorrect?; (4) Was Mr. Frame intoxicated
at the time of his death?; and (5) The ethanol lab results
are termed by you as unreliable. If the results were used to
diagnose and treat live patients, would they then be
reliable? (H154-156).
20
Plaintiff maintains that Dr. Tovar and Hartford failed to
address, or failed to meaningfully address:
SMH’s lack of forensic accreditation;
The absence of a chain-of-custody document and the
missing label over the top of the blood sample
tube, in violation of SMH’s own policies;
The Medical Examiner’s failure to identify the
anatomical source of the blood and whether the
blood was venous or arterial;
The use of grey-top tubes which are “well-known”
allow
fermentation,
and
the
presence
fermentation in the blood sample, as evidenced
the two extra volatile organic compound peaks
the chromatograms;
to
of
by
in
The reliability of single-column gas chromatography
testing;
The removal of data from the test result, as
evidenced by the notation “Small Noise Peaks
Clipped,”
the
asymmetric
peak
shapes
and
significant tailing in the chromatograms, and the
absence of uncertainty values; and
The potential for inaccurate post-mortem blood
alcohol test results due to crash trauma, alcohol
in the stomach, resuscitation efforts, fluid
administration,
medication
administration,
individual variations in ethanol absorption and
elimination, the time lapse between the injury and
blood collection, and other “confounding factors.”
(Doc. # 24 at 14-21).
“[A] reviewing physician is not required to address every
single piece of evidence produced by a claimant.” Kirkpatrick
v. Liberty Mut. Grp., Inc., 856 F. Supp. 2d 977, 997 (S.D.
Ind. 2012); Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569,
578-79 (7th Cir. 2006) (“there is nothing in ERISA or our
21
precedent requiring doctors to write like lawyers or plan
administrators”). Dr. Tovar opined that the “[t]he methods by
which the blood ethanol specimen was obtained [were] well
within reasonable standard practice for medical toxicology to
be able to opine on one aspect of the presence of clinical
intoxication,” and further, that “[t]here is no evidence that
there was significant postmortem alterations of the resultant
blood ethanol level such as putrefaction, incorrect sample
identification,
incorrect
lab
hardware
analysis,
or
inappropriate location of specimen tissue areas or other
interfering substances.”
(H170-H171).
Dr. Tovar stated that
“there was no evidence of significant putrefaction” because
Frame was “most probably preserved via cooling soon after he
was pronounced dead,” which is a common practice “proven to
decrease the postmortem ‘auto fermentation’ effect and make
the observed postmortem blood tests more reliable.”
(H170).
Those opinions adequately respond to Dr. Rose’s objections
regarding SMH’s lack of forensic accreditation, chain of
custody, the presence of fermentation, the grey-top tubes, and
specimen origin.
With
respect
to
methodology,
Dr.
Tovar
opined
that
“these blood ethanol tests are also commonly used by medical
toxicologists and pathologists to opine on the cause and
manner of death in medical toxicology.”
(H170).
Dr. Tovar
also observed that there was “a rigid quality improvement
22
process on the lab method (GC/headspace) used to analyze blood
specimens for the presence of ethanol and other volatile
chemicals.”
(H171).
That opinion adequately responds to Dr.
Rose’s criticism that SMH used single-column rather than dualcolumn gas chromatography.
Dr. Tovar concluded that none of Dr. Rose’s stated
reasons for an “extreme error” were proven to be present and
that “the blood sample analysis was a trusted clinical level.”
(H168, H170).
Presumably, Dr. Tovar referred to an “extreme
error” because Dr. Rose opined that Plaintiff’s blood test
result should have been 0.04 gm/dL or lower, but in fact
measured
(H1596)
over
three
times
that
amount,
at
0.149
gm/dL.
Dr. Tovar correctly stated that Dr. Rose failed to
opine that any of issues he identified actually caused an
error of that magnitude.
Accordingly, Dr. Tovar’s opinion
adequately addresses Dr. Rose’s opinions regarding the test
result,
including
the
asymmetric
and
tailing
peaks,
the
clipping of small noise peaks, and the absence of uncertainty
values.6
6
Plaintiff emphasizes that the asymmetric and tailing
peaks, as well as the two extra volatile organic compound
peaks, are “objective” because they are apparent from the
chromatogram charts. (Doc. # 24 at 16, 18). Nevertheless,
Plaintiff cites no evidence to suggest that these “objective”
issues produced such a substantial discrepancy in the test
result. As Dr. Tovar noted, the test result “was well over
the prohibited per se value” of 0.08 gm/dL. (H171).
23
Finally, Dr. Rose raised a number of general objections
to the reliability of post-mortem blood testing, including the
potential for resuscitation efforts or alcohol in the stomach
to affect test results.
By contrast, Dr. Tovar opined that
“[t]he methods used to analyze for the quantitative presence
of blood are usual and customary for both live and dead
subjects . . . and most of the potential areas of concern are
theoretical and unproven in post mortem studies.”
H170).
(H168,
Dr. Tovar further opined that standard resuscitation
efforts have no effect on post-mortem ethanol levels and that
“post mortem diffusion of ethanol from the stomach of the
decedent into his venous peripheral blood is a rare and
theoretical event[.]”
(H168-H169).
Particularly given the
hypothetical nature of Dr. Rose’s objections to post-mortem
blood testing, Dr. Tovar adequately responded to Dr. Rose’s
opinion on that issue.
In
a
“battle
of
the
experts,”
a plan administrator
retains discretion to choose one expert over another.
Corry
v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 401 (5th
Cir. 2007); accord Blankenship, 644 F.3d at 1356.
Dr. Rose’s
19-page opinion provided a barrage of criticisms, yet Dr. Rose
tied none of those criticisms to a three-fold discrepancy in
the test result.
See Bickel v. Sunbelt Rentals, Inc., No.
CIV.A WMN-09-2735, 2010 WL 3938348, at *4 (D. Md. Oct. 6,
2010) (“It would be highly unreasonable to conclude that the
24
test was so inaccurate as to report Plaintiff’s blood alcohol
level as more than twice the legal limit if it was, in fact,
under the legal limit.”)
On the other hand, Dr. Tovar opined
that the Medical Examiner and SMH conducted their activities
within the bounds of clinical practice, and Dr. Tovar, as an
emergency
room
physician
with
toxicology
qualified to give such an opinion.
training,
is
Although Plaintiff may
prefer that the blood test result have received a forensic
analysis, Plaintiff does not argue that such an analysis was
required
under
the
policy
language.
Under
these
circumstances, Hartford reasonably adopted Dr. Tovar’s opinion
that the blood test was reliable.
(H120).
Plaintiff raises two additional challenges to Hartford’s
handling of the claim.
First, Plaintiff maintains that Tubbs
violated 29 C.F.R. § 2560.503-1(h)(3), by sending Frame’s file
back to the claims examiner who initially denied the claim,
rather than immediately performing an independent review.
(Doc. # 24 at 6-9).
As Hartford points out, the cited
provision applies to disability appeals.
(Doc. # 28 at 3).
But regardless, the record demonstrates that Hartford acted
reasonably.
file,
According to emails and letters in the claim
Hartford
originally
understood
that
Plaintiff
was
attempting to perfect her claim rather than appeal because
Plaintiff submitted new evidence.
After
Plaintiff
contacted
(H509-H515, H546-H549).
Hartford
25
to
demand
that
the
information be independently reviewed as an appeal, Hartford
treated the matter as an appeal.
(H509, H513-H515).
Plaintiff also argues that Hartford’s denial decision
referenced the report of the first expert, Dr. Wright, despite
Hartford’s earlier representation that “Hartford will not be
relying on this report.” (Doc. # 24 at 11-12; H117, H430).
However, Hartford acknowledged in the decision letter that it
obtained a second opinion due to Plaintiff’s concerns about
Dr. Wright.
(H117).
And given that Dr. Wright and Dr. Tovar
essentially agreed, it was reasonable for Hartford to mention
Dr. Wright’s opinion in its decision letter.
Moreover,
Hartford’s decision to credit Plaintiff’s concerns about Dr.
Wright and to obtain a second independent opinion demonstrates
Hartford’s evenhandedness in reviewing Plaintiff’s claim.
ERISA
includes
a
“fundamental
requirement
that
an
administrator’s decision to deny benefits must be based on a
complete administrative record that is the product of a fair
claim-evaluation process.” Melech, 739 F.3d at 676. Hartford
considered Plaintiff’s evidence and obtained two independent
opinions.
Hartford’s decision to deny benefits is supported
by the blood alcohol test result and Dr. Tovar’s opinion that
the result is reliable.
Lending further support to the
reliability of the blood alcohol test result are, as Dr. Tovar
noted, two undisputed facts: Frame consumed alcohol just prior
to the crash, and Frame was involved in a single-car collision
26
despite the absence of adverse road conditions. (H168, H171).
Based on the collective weight of the evidence, Hartford
possessed
a
reasonable
basis
for
invoking
the
policy’s
intoxication exclusion.
In reaching this decision, the Court has considered the
structural conflict of interest present in this case, as
Hartford concedes that it “both makes eligibility decisions
and pays awarded benefits out of its own funds.”
at 11); Blankenship, 644 F.3d at 1355.
(Doc. # 22
But Plaintiff raises
no argument on this issue, and the Court detects no conflict
that is of “sufficient inherent or case-specific importance.”
Id. at 1357 (internal quotation marks omitted); Prelutsky,
2017 WL 2406730, at *6 (emphasizing that the plaintiff retains
the burden on this issue).
IV.
Conclusion
The circumstances underlying this case are undeniably
tragic.
Yet, ERISA requires this Court to afford appropriate
deference to Hartford’s decision.
1357.
Blankenship, 644 F.3d at
For the reasons set forth above, Hartford’s decision
was not unreasonable or arbitrary and capricious.
Id.
Accordingly, it is ORDERED, ADJUDGED, and DECREED that:
(1)
Defendant
Hartford
Life
and
Accident
Insurance
Company’s Dispositive Motion for Summary Judgment (Doc. # 22)
27
is GRANTED, and Plaintiff Deborah Frame’s Motion for Summary
Judgment (Doc. # 24) is DENIED;
(2)
The Clerk is directed to enter judgment in favor of
Defendant Hartford Life and Accident Insurance Company and to
CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 27th
day of June, 2017.
28
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