Harding v. Hartford Life And Accident Insurance Company

Filing 24

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 4/10/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BECKY HARDING,
Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendant.

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Case No. 16-cv-6700
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Becky Harding’s motion to compel and memorandum
regarding the scope of discovery [20]. For the reasons set forth below, Plaintiff’s motion to
compel [20] is granted in part and denied in part.
I.

Background1
Plaintiff Becky Harding was an operations analyst for PrivateBancorp, Inc. (“Private

Bank”) from August 2003 through June 2012. [1, ¶ 7.] On August 13, 2011, Plaintiff allegedly
became disabled as a result of degenerative joint disease in her knees, rheumatoid arthritis,
degenerative disc disease, and other impairments. Id. ¶ 8. Through her employment with Private
Bank, Plaintiff received short-term and long-term disability coverage and life insurance that was
issued, underwritten, and administered by Defendant Hartford Life and Accident Insurance
Company. Id. ¶ 9. Except for a period when Plaintiff returned to work, Defendant paid Plaintiff
short-term and long-term disability benefits and provided for the continuation of her life
insurance benefits. On March 14, 2014, Defendant terminated Plaintiff’s long-term disability

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The Court takes these facts from the Plaintiff’s complaint, which it offers for background purposes only.

payments and life insurance premium waiver. Id. Plaintiff appealed this decision, but Defendant
declined to overturn its denial of benefits. Id. ¶ 12. This suit followed.
Plaintiff asserts a claim under 29 U.S.C. § 1132(a)(1)(B) of the Employee Retirement
Income Security Act of 1974 (“ERISA”) for recovery of long-term disability benefits,
declaratory relief that these benefits are to continue, and waiver of premium benefits for her life
insurance and supplemental life insurance. [16, at 2.] In connection with this claim, Plaintiff has
sought two depositions. The first is of Dr. Julia Ash, M.D., an independent medical consultant
retained by Professional Disability Associates (whom Defendant retained) to review Plaintiff’s
medical records. [20, at 3.] The second is of Mary Roman, a claim manager who rendered the
decision denying Plaintiff’s claim on appeal. Id. Defendant opposes both depositions.
II.

Legal Standard
In ERISA cases, “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed

under a de novo standard unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). “If such discretion is granted,
court review is under the arbitrary and capricious standard.” Schultz v. Aviall, Inc. Long Term
Disability Plan, 670 F.3d 834, 837 (7th Cir. 2012); see also Raybourne v. Cigna Life Ins. Co. of
N.Y., 576 F.3d 444, 449 (7th Cir. 2009) (noting that “the arbitrary-and-capricious standard * * *
is synonymous with abuse of discretion” for ERISA claims). These different standards of review
inform the scope of permissible discovery. Where the arbitrary and capricious standard is used,
discovery is generally not permitted. See Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 813–
14 (7th Cir. 2006); Dennison v. MONY Life Ret. Income Sec. Plan for Employees, 710 F.3d 741,
747 (7th Cir. 2013) (explaining that there has been a “softening, but not a rejection, of the

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standard announced in Semien”). If de novo review applies, discovery may be available but is
not guaranteed. Patton v. MFS/Sun Life Fin. Distribs., Inc., 480 F.3d 478, 490 (7th Cir. 2007).
The parties agree that de novo review applies here. [20, at 1–3; 22 at 2–3; 16, at 3.]
Under this standard, a court “makes an independent decision about how the language of the
contract applies to those facts” and the case “should be conducted just like contract litigation.”
Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 843 (7th Cir. 2009). Nevertheless, the Court
has “discretion to ‘limit the evidence to the record before the plan administrator, or * * * [to]
permit the introduction of additional evidence necessary to enable it to make an informed and
independent judgment.’” Patton, 480 F.3d at 490 (quotation omitted)).
“Numerous factors are relevant to the district court’s decision, the most central being the
court’s need to hear the evidence in order to make an informed evaluation of the parties’ claims
and defenses * * *, which will obviously depend on the nature of the claims and whether the
administrative record was ‘relatively undeveloped’ with respect to those claims.” Id. at 490–91.
Other relevant factors include “whether the evidence the parties seek to introduce would concern
plan terms or historical facts concerning the claimant, whether the plan administrator faced a
conflict of interest and * * * whether the parties had a chance to present their evidence in the
ERISA administrative proceeding.” Id. at 491. “[N]o factor is necessarily determinative.” Id.
In weighing these factors, “[a] court should not automatically admit new evidence whenever it
would help to reach an accurate decision.” Id. at 492. Discovery should be allowed “only where
the benefits of increased accuracy exceed the costs.” Id.
III.

Analysis
Plaintiff proposes to depose Dr. Ash “to determine the nature and extent of her

qualifications, any economic or other biases that may have influenced her opinions, and the basis
of her opinions.” [20, at 3.] Likewise, she seeks to depose Ms. Roman “to determine the nature
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and extent of her qualifications to render a disability benefit determination, any economic or
other bias Ms. Roman may have had, and whether Ms. Roman adjudicated Plaintiff’s claim
appeal in accordance with” the appropriate standards. Id. at 3–4. While these deposition topics
are similar, they implicate different concerns regarding the appropriate scope of discovery.
Dr. Ash’s medical report is part of the evidence that the Court will consider in connection
with its de novo review. As courts have explained, a physician’s potential biases and conflicts of
interest “could directly affect the Court’s decision whether [Plaintiff] is or was actually disabled”
because they bear on the credibility and reliability of her medical opinions. Borich v. Life Ins.
Co. of N. Am., 2013 WL 1788478, at *5 (N.D. Ill. Apr. 25, 2013); accord Grant v. Standard Ins.
Co., 2013 WL 2434698, at *1 (N.D. Ill. June 4, 2013) (“Evidence of a doctor’s potential bias,
however, is relevant because it goes to the credibility of the [physician’s reports], which [the
court] will consider when [it] make[s its] independent assessment as to whether Plaintiff is
entitled to [long-term disability] benefits.”); Gavin v. Life Ins. Co. of N. Am., 2013 WL 2242230,
at *2 (N.D. Ill. May 21, 2013) (“To the extent Defendants intend to rely on the medical opinions
of the four subpoenaed doctors to prove that [plaintiff] is not entitled to [long-term disability]
benefits, the doctors’ potential financial bias or conflict of interest in issuing their medical
opinions is a relevant factor for this court to consider.”). “In other words, Dr. [Ash’s] report ‘is
relevant not only to Defendant’s denial of Plaintiff’s claim but also to the merits of that claim.’”
Yasko v. Reliance Standard Life Ins. Co., 2012 WL 4797795, at *2 (N.D. Ill. Oct. 9, 2012).
Defendant does not represent that it will forgo reliance on Dr. Ash’s medical opinions. “It would
be unfair for the Court to allow [Defendant] to rely on medical opinions without giving
[Plaintiff] the opportunity to seek discovery regarding those opinions and to discredit them if
they are the product of bias.” Borich, 2013 WL 1788478, at *5.

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Defendant offers three reasons that this discovery should be denied, none of which is
persuasive. First, Defendant points out that some courts have, in their discretion, declined to
allow medical consultant discovery, but none of these cases is directly on point. [22, at 4–7
(citing Estate of Blanco v. Prudential Ins. Co. of Am., 606 F.3d 399 (7th Cir. 2010); Novak v.
Life Ins. Co. of N. Am., 956 F. Supp. 2d 900 (N.D. Ill. 2013); Ehas v. Life Ins. Co. of N. Am.,
2012 WL 5989215 (N.D. Ill. Nov. 29, 2012); and Ball v. Standard Ins. Co., 2011 WL 2708366
(N.D. Ill. July 8, 2011)).]2 In Blanco, the Seventh Circuit affirmed the district court’s decision to
exclude at trial affidavits that the plaintiff submitted from his own physicians—a circumstance
unlike a request to take discovery of a defendant’s medical consultant. 606 F.3d at 402–404.
Similarly, Defendant emphasizes that the plaintiff in Nowak was precluded from submitting an
affidavit from her own pain specialist because she failed to “identify a specific aspect of her
treatment that is not adequately discussed in the files already contained within the administrative
record,” which (again) is not the same as seeking to depose a defendant’s medical consultant.
956 F. Supp. 2d at 913. In Ehas, the court rejected additional discovery of physicians and the
claim administrator, but did so only because, in that case, “these requests go to any potential
conflict of interest and the motive of the administrator” (not the physician). 2012 WL 5989215,
at *11 (emphasis added); Gavin, 2013 WL 2242230, at *3 (distinguishing Ehas). In Ball, the
court found that inquiries into the physicians’ opinions were irrelevant because the court would
“weigh all of the medical evidence [itself] and not rely on the opinions of the consulting
physicians.” 2011 WL 2708366, at *2. Defendant has not suggested that the Court should

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Defendant also cites Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569 (7th Cir. 2006), but
acknowledges that this case involved application of the arbitrary and capricious standard. Id. at 757
(“This is a difficult road for [plaintiff] because the existence of potential bias, a potential conflict, is not
enough to dislodge our ordinary arbitrary-and-capricious review.”).

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ignore Dr. Ash’s report and look exclusively at Plaintiff’s medical records alone, and thus Ball’s
fact-specific holding has persuasive less force here.
Second, Defendant argues that the administrative record is comprehensive, contains
Plaintiff’s medical records, and should not upset the default that “extra-record” discovery is
“limited” to the “‘rare’ case.” [22, at 6 (citing Patton).] Neither side submits a copy of the
administrative record, but the Court is skeptical that all of the evidence related to Dr. Ash’s
biases and conflicts is contained in the record itself. Regardless, Patton explained that it was
“[r]eversals” of district courts’ discovery decisions that would be “rare,” 480 F.3d at 491, not
that the decision to allow extra-record discovery in the first place should be rare.
Third, Defendant argues the equities. It contends that deposing Dr. Ash will allow
Plaintiff to “sandbag” Defendant with new evidence and end run the requirement that Plaintiff
exhaust her administrative remedies. [22, at 7.] It also argues that any potential benefit from this
three-hour video teleconference deposition would be outweighed by its costs in light of this
case’s value. Id. Defendant does not explain precisely how it would be sandbagged if Plaintiff
elicited evidence of the alleged bias, lack of qualifications, or unreliable opinions of Defendant’s
medical consultant. If Plaintiff had a prior opportunity to submit this same evidence into the
record, Defendant does not say what it was. Moreover, Defendant’s argument that this one
deposition would be unduly burdensome and outweigh the “relatively low amount of benefits at
issue in this case” is significantly undercut by Defendant’s “alternative request” to conduct four
depositions (Plaintiff and her three treating physicians) if Plaintiff is permitted any extra-record
discovery. [22, at 7, 13.] It is hard to see how the cost of taking Dr. Ash’s deposition is
unreasonable, but incurring the same costs to take five depositions is reasonable. Accordingly,
the Court will permit Plaintiff’s to depose Dr. Ash on the requested topics.

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However, the Court is not persuaded to allow Ms. Roman’s deposition. Ms. Roman’s
qualifications, her purported biases, and her decision making process are simply irrelevant under
a de novo review because this Court must make an “independent decision” regarding Plaintiff’s
eligibility for benefits. Krolnik, 570 F.3d at 843. Said differently, “[w]hat happened before the
Plan administrator or ERISA fiduciary is irrelevant.” Diaz v. Prudential Ins. Co. of Am., 499
F.3d 640, 643 (7th Cir. 2007). The Court will not defer to or rely on Ms. Roman’s decision to
deny Plaintiff’s appeal, which means questions about her biases or if she applied the correct
standard to review Plaintiff’s claim “ha[ve] no probative value whatsoever.” Borich, 2013 WL
1788478, at *5.3 “[D]iscovery into [Defendant’s] decision-making process is barred.” Id.
Plaintiff acknowledges that some of the very cases on which she relies deny discovery of
claims adjusters. [See 20, at 6.] And the two cases she cites that permitted this kind of discovery
are of little help to her. The first, Marantz v. Permanent Med. Grp. Inc. Long Term Disability
Plan, 2006 WL 3490340 (N.D. Ill. Nov. 29, 2006), was decided without the benefit of the
Seventh Circuit’s decision in Diaz and does explain how discovery into whether the claims
adjustor’s decision-making process was tainted will inform a court’s de novo review. The other,
Shepherd, reasoned that the mere allegation that “Defendant has an inherent conflict of interest
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Accord Diaz, 499 F.3d at 643 (“[T]he question before the district court was not whether [defendant]
gave [plaintiff] a full and fair hearing or undertook a selective review of the evidence; rather, it was the
ultimate question whether [plaintiff] was entitled to the benefits he sought under the plan.”); Novak, 956
F. Supp. 2d at 913 (“[T]o the extent [plaintiff] seeks to take discovery regarding whether the Plan
administrator’s decision was influenced by a structural conflict of interest, such conflict is irrelevant[.]”);
Grant, 2013 WL 2434698, at *1 (denying discovery into “Defendant’s general practices in administering
the Plan, or whether Defendant fairly adjudicated Plaintiff’s claim”); Wise v. Life Ins. Co. of N. Am., 2012
WL 1203559, at *3 (N.D. Ill. Apr. 10, 2012) (“[E]vidence regarding conflict of interest, however, would
be irrelevant in a de novo review case because the Court reviews the matter without regard to the
administrator’s decision.”); Yasko, 2012 WL 4797795, at *2 (“[E]vidence solely explicating
[Defendant’s] review process is irrelevant” where a court conducts a de novo review.); Walsh v. Long
Term Disability Coverage for All Employees Located in the United States of DeVry, Inc., 601 F. Supp. 2d
1035, 1043 (N.D. Ill. 2009) (“[T]his court can discern no reason to inquire further into Defendants’
compliance with ERISA’s procedural regulations in relation to [plaintiff’s] LTD claim.”). But see
Shepherd v. Life Ins. Co. of N. Am., 2012 WL 379775, at *3 (N.D. Ill. Feb.3, 2012) (interpreting Patton to
not foreclose consideration of conflict of interest in the scope of discovery inquiry in de novo review).

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as both the claim administrator and the payor” is not sufficient to receive discovery since “nearly
all insurance companies fit that description.” 2012 WL 379775, at *3. Rather, in Shepherd, the
plaintiff “claims to have received information that the insurance company specifically targeted
her employer’s group of employees to terminate benefits because there were a number of
company employees on disability at the same time.” Id. The court in Shepherd deemed that
issue “potentially relevant” to the “whether the contract was honored,” and permitted this
discovery. Id. Plaintiff does not offer any similar factual allegations here that would justify
deviating from the ordinary case to allow this discovery.
Furthermore, Plaintiff contends that “if [she] is successful in the litigation and wishes to
seek fees, ‘culpability’ is a major factor the court will need to address in assessing whether to
award fees.” [20, at 6.] Of course, this is potentially true in every case. Yet, Plaintiff does not
identity a single court that has permitted claims adjustor discovery on this basis. Nor does
Plaintiff explain how questions into Ms. Roman’s qualifications or whether she applied the
correct standard when evaluating Plaintiff’s appeal would have anything other than a speculative
connection to culpability. Therefore, the Court denies Plaintiff’s request to depose Ms. Roman.
In addition, the Court denies Defendant’s request for additional discovery. If Defendant
believes that the testimony elicited during Dr. Ash’s deposition requires additional discovery
from Plaintiff or her treating physicians, Defendant is free to reassert and justify its request.
IV.

Conclusion
For the foregoing reasons, the motion to compel [20] is granted in part and denied in part.

Dated: April 10, 2017

_________________________________
Robert M. Dow, Jr.
United States District Judge

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