GANEM v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
Filing
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ORDER granting in part 17 Motion for Discovery; granting in part 17 Motion to Modify Administrative Record (ERISA). By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANNE GANEM,
Plaintiff,
v.
LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendants
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No. 1:12-CV-00128-GZS
MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION
FOR DISCOVERY AND TO MODIFY THE RECORD
This action arises under the Employee Retirement Income Security Act, 29 U.S.C. §§
1001 et seq. Plaintiff Anne Ganem has filed a motion requesting leave to conduct discovery and
modify the administrative record (ECF No. 17). For reasons that follow, the motion is granted in
limited part.
BACKGROUND
Plaintiff’s First Amended Complaint (ECF No. 18) relates that she was a sales associate
with Lowe’s for approximately two years and that she participated in employee benefit plans
offering short term disability and long term disability insurance. Plaintiff alleges disability based
on “severe pain and fatigue caused by fibromyalgia.” (Am. Compl. ¶ 9.) Defendant Liberty Life
Assurance paid Plaintiff short term disability benefits but denied her claim for long term
disability benefits, both initially and over her appeal. (Id. ¶ 11.) The plan designates Defendant
the sole and exclusive adjudicator of claims appeals. (Id. ¶¶ 12-13.) Had Defendant approved
Plaintiff’s claim, Defendant would have paid the long term disability benefits from its own
funds. (Id. ¶¶ 14, 44.)
According to the Complaint, Defendant referred the claims file to two medical
consultants for review. The first consultant, Dr. Tanya Lumpkins, MD, allegedly concluded that
the file supported the fibromyalgia diagnosis and the presence of certain medication side effects.
(Id. ¶ 15.) Dr. Lumpkins allegedly opined that Plaintiff “would be unrestricted when it comes to
physical function,” but that she would suffer certain medication side effects that preclude
working at unrestricted heights, driving a company vehicle, working with heavy machinery, or
working with safety-sensitive material. (Id. ¶ 19.) The second consultant, “Dr. Lobel,” also
reviewed the file. He returned an opinion stating that Plaintiff “does not have medical
condition(s) associated with impairment,” that she has “no restrictions and limitations,” and that
she has “the capacity to perform sustained full time unrestricted work.” (Id. ¶ 16.)
Plaintiff otherwise alleges that Defendant:
(1) “failed to follow its own internal guidelines requiring . . . a Technical Claims
Management Services referral when confronted with a claimant who meets the
diagnosis for fibromyalgia” (Id. ¶ 22)1;
(2) “failed to follow its own procedures regarding the comparison of the demands
of a job as described and occupations as performed in the national economy”
(Id. ¶ 232);
(3) failed to consider “additional, relevant materials” submitted in support of
Plaintiff’s claim after Defendant had already denied her appeal (Id. ¶ 253);
and
(4) “acted in bad faith by favoring the opinions of its hired doctors over the
medical evidence and opinions provided by [Plaintiff’s] treating physicians”
(Id. ¶ 324).
1
2
3
4
See also Am. Compl. ¶¶ 29, 31, 38, 41, 46.
See also id. ¶¶ 29, 31, 38, 46.
See also id. ¶¶ 30, 39. The additional materials appear to consist of a vocational assessment. Id. ¶ 30.
See also id. ¶¶ 32, 38, 45.
2
As alleged in Plaintiff’s First Amended Complaint, Defendant was not only the final
decision maker with respect to her claim for benefits, but also the party that would pay the
benefits it awarded. Plan administrators who serve the employee benefits market in this dual role
are understood to operate under the cloud of a “structural conflict.” Denmark v. Liberty Life
Assur. Co., 566 F.3d 1, 7 (1st Cir. 2009). When the plan administrator has been assigned special
discretionary authority to make benefits determinations, despite the presence of the structural
conflict, courts are directed to “review benefit-denial decisions for abuse of discretion,
considering any conflict as one of a myriad of relevant factors.” Id. at 9 (citing Met. Life Ins.
Co. v. Glenn, 554 U.S. 105, 117 (2008)). Because structural conflicts are a factor, “courts are
duty-bound to inquire into what steps a plan administrator has taken to insulate the
decisionmaking process against the potentially pernicious effects of structural conflicts.” Id.
These prophylactic steps are to be made part of the record and, because this is so, plan
administrators routinely supply the Court with an affidavit outlining the same. Defendant has
supplied such an affidavit in the Administrative Record, pages 1 through 5.
Heather Heins, manager of Defendant’s Appeal Review Unit, declares under penalty of
perjury that the Administrative Record “includes all documents submitted, considered, or
generated in the course of making the benefit determination.” (Heins Decl. ¶ 4.) She further
attests that the employees who make claims decisions “are not evaluated or compensated on the
basis of the amount or number of claims paid or denied,” that Defendant “in no way discourages
its employees from paying claims that are covered and payable,” that employees are “evaluated
on the quality and accuracy of their claims decisions,” and that they “do not consider any interest
of Liberty Life, financial or otherwise, when making claims decisions.” (Id. ¶ 7.) Heins
identifies the senior case manager who first reviewed and denied Plaintiff’s claim, the manager’s
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manager who approved the decision, and the appeal review consultant who considered the
appeal. (Id. ¶¶ 10-11.) According to Heins, an appeal review consultant does not discuss a claim
with the case manager and both the claims department and the appeal unit “are completely
separate from its financial and underwriting departments.” (Id. ¶ 12.)
Heins attests that Defendant uses “third-party medical vendors to arrange reviews of
claimants’ medical records,” and that, while it does sometimes request review by a particular
medical certification or specialty, the vendor maintains the discretion to assign files to particular
physicians. (Id. ¶ 13.) Defendant does not look to consulting physicians to make benefit
determinations, but rather requests that the physicians “answer specific and varying questions
posed to them by the Case Managers or Appeal Review Consultants.” (Id.) Heins declares that
Defendant has no affiliation with the outside vendors or their stable of physicians, compensates
the vendors pursuant to arrangements agreed upon prior to the referral, issues payment to the
vendors that do not vary based on the opinion expressed by the physician, and does not know
how the vendors compensate the physicians in turn. (Id. ¶ 14.)
DISCUSSION
In ERISA cases, discovery is constrained. Judicial review of a benefits determination
ordinarily is to be based on the same record that was before the claims administrator. Liston v.
Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003) (stating that review is
presumptively “on the record made before the entity being reviewed” and that “some very good
reason” is required to deviate from that presumption). “Because full-blown discovery would
reconfigure that record and distort judicial review, courts have permitted only modest,
specifically targeted discovery in such cases.” Denmark, 566 F.3d at 10. Even in the area of
structural conflict, discovery “must be allowed sparingly and, if allowed at all, must be narrowly
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tailored so as to leave the substantive record essentially undisturbed.” Id. Discovery on the topic
should exist only where there are gaps or ambiguities in the record or to ensure that documented
procedures were followed. Id.
Plaintiff proposes that she be permitted to conduct discovery (1) “related to the
procedural process of claims decisions”; (2) “to determine if plan provisions have been applied
consistently with respect to similarly situated claimants”; and (3) “relating to Liberty’s conflict
of interest in determining the Plaintiff’s claim for long term disability benefits.” (Pl.’s Mot. to
Conduct Discovery and Modify the Admin. R. at 1-3, ECF No. 17.) Plaintiff also requests that
the Record be modified in certain particulars. (Id. at 3-4.) These issues are addressed in turn.
1.
The procedural process of claims decisions.
“Plaintiff requests that the record be supplemented with all documents evidencing the
procedure used by Liberty . . . in review of Plaintiff’s claims.” (Id. at 1.) Plaintiff observes that
the First Circuit, in Orndorf v. Paul Revere Life Ins. Co., wrote that “evidence outside the
administrative record might be relevant to a claim of . . . prejudicial procedural irregularity in the
ERISA administrative review procedure.” 404 F.3d 510, 520 (1st Cir. 2005). In this regard,
Plaintiff believes that she should be permitted to depose each of the decision makers who
reviewed her claim. (Mot. at 2.) What Plaintiff omits from her motion, however, is the “some
very good reason” that is required before the court should authorize discovery.
Plaintiff has alleged in her pleading that there is an internal guideline that requires a
“Technical Claims Management Services referral” because she based her claim on a
fibromyalgia diagnosis. (Am. Compl. ¶ 22.) Plaintiff also alleges that Defendant failed to
follow a procedure related to comparing the demands of Plaintiff’s actual job with the demands
of that occupation as performed in the national economy. (Id. ¶ 23.) In her Motion, Plaintiff
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contends she should be awarded discovery because Defendant, in “bad faith,” never disclosed the
existence of either the guideline or the procedure during the pendency of her claim. (Mot. at 3.)
According to Plaintiff, she should be allowed to discover “what policies were actually used” and
should have “broader access to Liberty Life’s claims manuals in light of the fact that relevant
material . . . was withheld from her.” (Id.)
On November 7, 2011, I conducted a telephonic conference related to Plaintiff’s request
to modify the record. The modifications she has requested are discussed below, but the
discussion reflected that Plaintiff acquired copies of both the written guideline and the written
procedures through her counsel’s independent initiatives. It also is apparent that her challenge to
the merits will contend that Defendant failed to follow the guideline and procedure, although in
her motion for discovery she does not give specifics about what the deviation was or what her
theory of discovery would be, only that she wants Defendant’s entire claims manual as a sanction
for bad faith and to be able to depose every decision maker who reviewed her claim.
Defendant does not dispute that the copies of guidelines and procedure Plaintiff acquired
are discoverable, but wants them to be treated as proprietary materials as far as the public docket
is concerned. A review of this guideline (actually captioned as “Policies Procedures and
Exceptions” number 11.082.01.1099) reflects that it does call for a referral process. There is no
indication that it otherwise calls for any different claims review procedure. Defendant’s counsel
represented at the telephonic hearing that the TCMS procedure merely provides that claims
based on certain medical conditions must be referred to certain in-house claims handlers.
Counsel also represented that there are no other policies, procedures, or guidelines related to
fibromyalgia or to the TCMS referral process and he offered to seek a supporting affidavit from
Defendant.
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Clearly, Plaintiff has a right to access and utilize in her merits presentation any written
rule, guideline, protocol, policy, procedure or like written materials that bear on her claim for
disability benefits. 29 C.F.R. § 2560.503-1(g)(1)(v)(A). If there are any further materials
pertaining to the procedures or standards for handling fibromyalgia claims, TCMS referrals, or
job versus occupation determinations, Defendant is ordered to produce them to Plaintiff and to
notify the Court so it can be arranged for their inclusion in the administrative record. Defendant
is further ordered to supply an affidavit attesting to the existence or non-existence of any such
written materials. The affiant will also attest whether the individuals who reviewed Plaintiff’s
claim were members of the TCMS referral group at the time. Plaintiff’s request for depositions
and further discovery on the topic of procedural process is denied.
2.
Consistent application of plan provisions
As Plaintiff states, ERISA regulations require that plans “establish and maintain
reasonable procedures,” 29 C.F.R. § 2560.503-1(b), including “safeguards designed to ensure
and to verify that benefit claim determinations are made in accordance with governing plan
documents and that, where appropriate, the plan provisions have been applied consistently with
respect to similarly situated claimants,” id. § 2560.503-1(b)(5). For this reason, Plaintiff
contends that she should be authorized to conduct discovery to determine whether Defendant
maintains such safeguards and, if so, how they have been applied. Also, Plaintiff would like to
know “the number of claims based on fibromyalgia that have been granted or denied . . . and all
documents indicating how many initial long term disability claims based on fibromyalgia have
been overturned on administrative appeal.” (Mot. at 2.)
Even in the context of non-ERISA litigation, this sort of expansive request for discovery
concerning the universe of comparator cases would be received poorly. In the ERISA context, of
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course, there needs to be a “very good reason” for any discovery. Plaintiff has failed to supply
the particulars that would enable the Court to deduce the presence of a very good reason for
discovery along these lines. For example, Plaintiff has not offered even a plausible basis for
inferring that she has been treated differently from any other claimant seeking long term
disability benefits under the plan based on fibromyalgia. By comparison, in Cannon v. UNUM
Life Insurance Company, I ordered discovery to enable a better understanding of UNUM’s use
of a specific plan provision related to mental illness. 219 F.R.D. 211, 214 (D. Me. 2004). That
discovery, it must be noted, was limited to “production of internal memoranda and other
documents that serve to clarify or otherwise expand upon the meaning of the mental illness
limitation,” including the in-house understanding of the policy terms “dementia” and “other
conditions not listed.” Id. (citing 29 C.F.R. § 2560.503-1(g)(1)(v)(A)).
Discovery in Cannon also extended to disclosure of any available “administrative
precedents” running directly to the narrow question at hand: whether drug-induced dementia is
an ‘other condition not listed’ to which Unum will not apply the mental illness limitations” and
the “procedures Unum has in place to comply with its fiduciary obligation to ensure that the
mental illness provision is ‘applied consistently with respect to similarly situated claimants.’”
Id. (quoting 29 C.F.R. § 2560.503-1(b)(5)). The discovery ordered in Cannon did not include
depositions and broad discovery pertaining to other claimants with the same condition and
depositions were not authorized. See id. at 216 (denying discovery into the “particulars of other
claims,” but requiring that “if Unum maintains guidelines or has produced memoranda, tables or
listings that serve to expand upon the partial listing of causes contributing to dementia that will
not be subjected to the mental illness limitation . . . , it will produce the same.”). See also Glista
v. UNUM Life Ins. Co., 378 F.3d 113, 122 (1st Cir. 2004) (approving of district court’s
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discovery restrictions and differentiating between document discovery designed to “shed light on
the ‘legal’ rule the Plan applies” as opposed to discovery that would introduce “facts about other
persons”).
a. Consistency safeguards or policies
In this case, the declaration Defendant has included in the Administrative Record to
address the fairness of its claims administration process does not speak to the issue of whether it
has procedures, processes, or safeguards in place to ensure consistent application of plan
provisions with respect to similarly situated claimants. However, Plaintiff has not identified any
key plan terminology upon which her claim for benefits turned. In Cannon, I concluded that
discovery about administrative precedent was particularly relevant because of the relative
ambiguity of the plan provision in dispute. Here, Plaintiff has not similarly targeted her request.
In terms of deciding the ultimate question in this case, Plaintiff has not described how the
presence or absence of an internal policy relating to “administrative precedent” would assist the
Court in the review of Defendant’s claim denial, such as by informing the Court of the
administrator’s customary construction of ambiguous policy language. Therefore, I deny this
discovery request.
b. Fibromyalgia data
I also deny the far broader-reaching request for data related to the number of
fibromyalgia claims that have been granted and denied and for “all documents” indicating the
number of initial fibromyalgia claim denials overturned on administrative appeal. Assume for
the sake of argument that the data would show that fibromyalgia claims have a low incidence of
success when it comes to LTD benefits, statistically speaking. The question that would remain
for the Court is whether or not Defendant’s denial of Plaintiff’s claim was an abuse of discretion.
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This would be determined based on whether the decision was reasoned and supported by
substantial evidence. Cusson v. Liberty Life Assur. Co., 592 F.3d 215, 223 (1st Cir. 2010).
The Court could not simply overturn the administrative decision and direct an award of benefits
because fibromyalgia claims fare poorly on average. If this were an acceptable analytical
approach, then individuals seeking LTD benefits based on conditions with a high incidence of
success would be the real beneficiaries because it would be far more striking if their claims were
denied. Data showing that fibromyalgia claimants fare poorly on average would only be
consistent with a denial of Plaintiff’s claim. Ultimately, the disability analysis is an
individualized assessment and a statistical analysis is not going to assist the Court in the process
of reviewing an administrative decision based on one person’s medical records and claim file.
3.
Conflict of interest
In this final category of discovery, Plaintiff requests “discovery relating to the doctors
hired by Liberty to review her claim and which demonstrates the greater weight which Liberty
gives to the reports of its own doctors over those of treating physicians.” (Mot. at 3.) In her
reply memorandum, Plaintiff adds that she wants the kind of discovery allowed in Achorn v.
Prudential Insurance Company of America, No. 1:08-cv-125-JAW, 2008 U.S. Dist. Lexis 73832,
2008 WL 4427159 (D. Me. Sept. 25, 2008). She says she is “amenable to structuring the
discovery to inquire into the compensation, usage rates and outcomes of referrals to the firms
MLS Group and MCMC as opposed to Dr. Tanya Lumpkins and Dr. Steven Lobel individually.”
(Reply Mem. at 6.) However, Plaintiff also expands her request in her reply memorandum,
proposing that discovery reach “the compensation and incentive structure of Liberty Life
employees who participate in the claims review and appeals process.” (Id.) In particular, she
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“moves to be allowed to conduct discovery as to compensation, promotion and incentives
regarding the individuals who reviewed her claim.” (Id. at 7.)
a. Defendant’s in-house compensation system
The request for further discovery of Defendant’s systems for compensation, promotion,
and “incentives” is denied. Defendant has addressed these concerns in the Heins Declaration.
Plaintiff has not made any initial showing that Defendant’s internal management or
compensation structure results in an “enhanced” conflict of interest and the structural conflict
that is inherent in its role as final decision maker and payer of successful claims is already a
factor for consideration.
b. Medical-consultant discovery
As far as medical-consultant discovery is concerned, Defendant maintains that the Heins
Declaration puts this to rest as well because Defendant paid MLS and MCMC directly, rather
than the physicians, and because the amount of compensation paid does not vary according to the
opinion that is delivered. (Def.’s Response at 10, ECF No. 21.) Defendant observes that “there
is nothing improper about seeking and relying on the opinions of non-treating, non-examining
physicians,” and that, “[o]bviously, [it] must pay for these reviews” and could only satisfy
Plaintiff’s suspicions if it somehow found physicians willing to volunteer their time. (Id. n.5.)
In Achorn, I partially granted a discovery request by ordering the disclosure of
information related to the defendant’s utilization of certain medical consulting firms.5 But see
5
The discovery authorization in Achorn read as follows:
Prudential is ordered to disclose the following to Achorn on or before October 30, 2008:
1. The rate and amount of compensation paid to the two third-party firms in question for their
services, including compensation for the services of any other third-parties engaged by them, in
turn, to review Achorn’s claim for benefits.
2. The total number of claims administered by Prudential under the subject MBNA Group Long
Term Disability Plan in 2005, 2006, 2007, and through the second quarter of 2008.
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Fortin v. Hartford Life & Accident Ins. Co., No. 1:11-cv-00230-DBH, 2011 U.S. Dist. Lexis
137118 (D. Me. Nov. 29, 2011) (denying such discovery on the grounds that “it would add
nothing to this record in terms of the decision made in this individual case” and that “this Court
is not in a position to evaluate the merits of [multiple] years of denied claims under this disability
plan”). Not unlike my order in Achorn, in Grady v. Hartford Life & Accident Ins. Co., No. 2:08339-DBH, 2009 U.S. Dist. Lexis 19920, 2009 WL 700875 (D. Me. Mar. 12, 2009), Magistrate
Judge Rich authorized the plaintiff to propound one set of up to 20 interrogatories and one set of
document requests designed to explore the relationship between the structurally-conflicted
defendant therein and its chosen medical consulting firm.6 The Court has no data reflecting what
discovery ever actually resulted from these authorizations, if any. The parties in Achorn filed a
stipulation of dismissal shortly after the order authorizing discovery, presumably due to
settlement. The parties in Grady filed a stipulation of dismissal, presumably for the same reason,
but only after the defendant obtained a confidentiality order to protect any disclosure it should
make in connection with Judge Rich’s order.
3. The total number of claims referred to in question 2 that were referred to the identified thirdparty firms, with separate figures provided for each firm.
4. The total number of claims referred to in question 3 that resulted in a recommendation by the
third-party reviewer that benefits be denied or terminated.
5. The total number of claims referred to in question 4 that actually resulted in a denied claim.
Achorn, 2008 U.S. Dist. Lexis 73832, *17-18, 2008 WL 4427159, *6-7.
6
The interrogatories and document requests authorized in Grady were limited to the following subject
matters:
(i) the corporate and/or contractual relationship between the defendant and UDC, (ii) the reason
why the defendant directed UDC to contact only two treating sources, (iii) the proportion of the
defendant's claims sent over the past three years for physician review to UDC versus to other
medical review firms, if any, and (iv) for that time period, the portion of such claims sent to UDC
and to other medical review firms, if any, in which a medical review was completed and sent to
the defendant, and the defendant ultimately denied the claim.
Grady, 2009 U.S. Dist. Lexis 19920, *14-15, 2009 WL 700875, *5.
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The basic assumption underlying this kind of discovery is that it will allow a plaintiff to
explore the correlation between consultant referrals and claim denials, presumably so that the
Court might better discern the relative weight to assign to the medical opinions that result from
the referral process. However, there is no information before the Court that presently would call
for an inference that the referral process in this case was biased. Nor would it be clear that the
system is biased if medical-consultant referrals, on average, result in denied claims. Presumably
referrals are not sought in every case. Presumably denials do not result from every referral.
There will be some claims for disability benefits so meritorious that claims examiners will grant
them without referrals to outside experts. Other claims will raise questions or doubts in relation
to whether the claimants are, in fact, totally disabled from sustained work activity. In such cases,
the file may contain only evidence submitted by treatment providers, providers who may have
biases of their own related to their patients. See Black & Decker Disability Plan v. Nord, 538
U.S. 822, 832 (2003) (“And if a consultant engaged by a plan may have an ‘incentive’ to make a
finding of ‘not disabled,’ so a treating physician, in a close case, may favor a finding of
‘disabled.’”). Referrals for opinions from third-party experts are entirely understandable in such
circumstances. The fact that plan administrators retain the medical-consulting firms with their
own funds is built into the disability insurance marketplace. Ultimately, these circumstances are
something we all must consider when deciding whether to buy the products offered in this
marketplace.
In the context of structural conflicts, discovery is the exception rather than the rule.
Courts treat structural conflict as a factor to be weighed when reviewing administrative
decisions. The same approach should apply in the context of medical-consultant referrals. The
concern over consultant bias, after all, is a subset of the concern over structural conflict. The
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supposition is that private medical-referral firms, recognizing that their product has a direct
impact on their client’s finances, seek to please the client (and not the claimant) to the extent
they are able. Nord, 538 U.S. at 832 (acknowledging appeals court’s “concern that physicians
repeatedly retained by benefits plans may have an ‘incentive to make a finding of not disabled in
order to save their employers money and to preserve their own consulting arrangements’”)
(quoting Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1143 (9th
Cir. 2001)). The legal expectation, of course, is that the consultants will exercise their
professional judgment in an objective and unbiased manner. The idea that routine discovery
along the lines outlined in Achorn and Grady is going to establish in a given case whether a
consulting expert evaluated the claim in an unbiased fashion is questionable.
The Court understands the nature of this monetary conflict regarding consultants as well
as it understands the nature of the larger structural conflict that arises from plan fiduciaries
deciding the claims they would have to pay. In the context of the larger structural conflict,
higher courts have determined that discovery is the exception and not the rule and they have
accounted for the limitation by making the conflict a factor to be considered as part of the
standard of review in close cases. Nothing in Plaintiff’s presentation persuades me that this is a
special case that justifies an exception to the limitations placed on discovery in ERISA benefitsdenial cases. I am simply not persuaded that the proposed medical-consultant discovery would
tend to materially modify the way in which this Court reviews the reasonableness of Defendant’s
decision. For this reason, the request for medical-consultants discovery is denied.
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4.
Request to modify the Record
In addition to seeking discovery, Plaintiff wants to have the Administrative Record
modified in certain respects. I held the November 7 telephonic hearing to address, primarily,
these issues.
a. Confidential designations
Pages 70, 71, 81, and 82 of the Administrative Record are at present entirely redacted and
read only “Proprietary and Confidential.” Pages 70 and 81 are the TCMS procedure discussed
above. Pages 71 and 82 are the job versus occupation procedure. Plaintiff objects to
Defendant’s redaction of these procedures. Plaintiff has the original pages and intends to use
them in her merits briefing. (Mot. at 3.) Defendant does not object to the Court’s review and
consideration of the document in question, but merely objects to including them in the public
record. (Def.’s Response at 11.) At my direction, Defendant filed with the Court unredacted
complete copies of the pages in question. They are now included in the Administrative Record
and are reposed in a sealed manila envelope. The Clerk will indicate on the docket that these
pages have been introduced and admitted to the Record.
b. Additional redactions
Page 55 of the Administrative Record reflects another redaction of approximately one
paragraph in size in relation to Claim Note 10. Page 56 has two similar redactions in relation to
Phone Note 3 and Phone Note 4. Plaintiff has not had an opportunity to see the original text.
Plaintiff argues that she is entitled to see the original of page 55 “because it directly pertains to
the decision made . . . and it relates to Liberty’s classification of her occupation.” (Mot. at 4.)
She does not seek the original of page 56. In response, Defendant says that the redacted text on
Page 55 concerns another claimant and was “mistakenly made part of the electronic claim notes
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concerning Ganem’s claim.” (Def.’s Response at 11.) Defendant produced the original of pages
55 and 56 for in camera review ahead of the November 7 telephonic hearing. It is apparent that
all of the redactions pertain to another claimant and were mistakenly entered into Plaintiff’s
claim file. Plaintiff’s request to see the redacted paragraph on page 55 is denied.
CONCLUSION
Plaintiff’s Motion for Discovery and to Modify the Record (ECF No. 17) is GRANTED
IN PART. The Administrative Record is modified to include sealed originals of pages 70, 71,
81, and 82. If there are any further rules, guidelines, protocols, policies, procedures or the like
pertaining to the procedures or standards for handling fibromyalgia claims, TCMS referrals, or
job versus occupation determinations, Defendant is ordered to produce them to Plaintiff and to
notify the Court so it can be arranged for their inclusion in the administrative record. Defendant
is further ordered to supply an affidavit attesting to the existence or non-existence of any such
written materials. The affiant will also attest whether the individuals who reviewed Plaintiff’s
claim were members of the TCMS referral group at the time. The affidavit and any additional
materials that must be produced pursuant to this Memorandum of Decision shall be added to the
record no later than November 15, 2012. Plaintiff’s further requests for discovery are denied.
CERTIFICATE
Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
So Ordered.
November 9, 2012
/s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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