GROSSO v. AETNA LIFE INS CO et al

Filing 24

ORDER denying 15 Motion for Discovery. By MAGISTRATE JUDGE MARGARET J. KRAVCHUK. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DOUGLAS GROSSO,
Plaintiff
v.
AETNA LIFE INS. CO., et al.,
Defendants

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) 1:12-cv-00327-GZS
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ORDER ON PLAINTIFF’S
MOTION FOR DISCOVERY (ECF No. 15)
This action arises under the Employee Retirement Income Security Act, 29 U.S.C. §§
1001 et seq. Plaintiff Douglas Grosso has filed a motion requesting leave to conduct discovery
(ECF No. 15). For reasons that follow, the motion is denied.
BACKGROUND
Plaintiff’s First Amended Complaint (ECF No. 20) relates that he participated in an
employee benefit long term disability insurance plan through Johnny’s Selected Seeds. Plaintiff
alleges he has been disabled since December 17, 2008. (Am. Compl. ¶ 7.) Defendant Aetna
paid Plaintiff long term disability benefits beginning June 15, 2009. (Id. ¶ 9.) The plan paid
disability benefits through September 13, 2011, when it terminated benefits, alleging plaintiff
was no longer disabled under the plan. (Id. ¶ 14.)
The Social Security Administration found that plaintiff was under a disability, defined as
an inability to engage in any substantial gainful activity by reason of impairment expected either
to result in death or to last for a continuous period of at least 12 months. (Id. ¶ 11.) According
to the complaint, defendant referred the claims file for an independent review. (Id. ¶ 16.)

Plaintiff otherwise alleges that “Aetna acted in bad faith by intentionally disregarding and
ignoring facts in support of Plaintiff’s claim.” (Id. ¶ 17.)
On January 22, 2013, Grosso filed his motion to conduct discovery in which he seeks an
order compelling Aetna to respond to six document requests and six interrogatories, which he
attached as exhibits to the motion. (Motion at 5.) Grosso argues that he requires this discovery
in order to explore conflict of interest issues allegedly raised by Aetna’s reliance on several
reports prepared by the independent medical record peer review physician consultants in
connection with its review of his benefit claim.
DISCUSSION
As explained by the parties, Defendant was not only the final decision maker with respect
to Grosso’s claim for benefits under the plan, 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.
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

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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
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.
The basis Grosso provides for his motion is that the peer reviewers’ bias is evidenced in
the administrative record by their purported mischaracterization of his treating physicians’
findings and alleged omissions of references to medical findings, which he claims to be evidence
of his disability. (Pl. Motion at 2.) Based on these purported instances of bias, Grosso requests
that this Court order Aetna to respond to plaintiff’s proposed interrogatories propounded to
defendants and plaintiff’s first request for the production of documents. (See ECF Nos. 15-1 and
15-2 for the plaintiff’s discovery requests.) Grosso’s discovery demands would require Aetna to
provide the following: (1) the amount of compensation Aetna paid to MLS regarding the peer
review reports conducted in this case, including the amount of compensation paid to each
independent medical record peer review physician retained by MLS to perform a review; (2) the
number of claims that Aetna administered under the Plan three and a half years before Grosso’s
claim; (3) the number of these claims referred to MLS; (4) the number of claims in which MLS
recommended that benefits be denied or terminated; (5) the number of these claims which
actually resulted in denial or termination; (6) the compensation and track record of opinions for

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each peer review physician retained in plaintiff’s case regarding disability during the five years
prior to that doctor’s peer review connected to plaintiff’s case.
I do not see how the discovery sought would further the court’s review of the
administrative record. Aetna’s treatment of plaintiff’s treating physician’s report is part of the
record and the independent reviewers’ deference, or lack thereof, to the treating physician is
likewise part of the record. That information is specific to this case and it can be evaluated in the
context of this claims decision. The discovery sought by plaintiff would not provide information
likely to assist with a meaningful review of the record. See 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”). The motion for discovery
is denied.
CERTIFICATE

Any objections to this Order shall be filed in accordance with Federal Rule of Civil
Procedure 72.
So Ordered.
Dated: March 11, 2013

/s/ Margaret J. Kravchuk
U.S. Magistrate Judge

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