Weinberg v. United of Omaha Life Insurance Company
Filing
31
Magistrate Judge Judith G. Dein: ORDER entered denying Request No. 2 of 18 Plaintiff's Motion for Discovery. (Dambrosio, Jolyne)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
AMY WEINBERG,
Plaintiff,
v.
UNITED OF OMAHA LIFE
INSURANCE COMPANY, et al.,
Defendants.
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CIVIL ACTION
NO. 13-11017-NMG
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION TO TAKE DISCOVERY
January 21, 2014
DEIN, U.S.M.J.
I. INTRODUCTION
This matter is before the court on the “Plaintiff’s Motion to Take Limited Focused
Discovery and to Add the Discovery Disclosed to the Record on Review” (Docket No.
18). This court has previously issued an order authorizing the production of limited
sections of the “DILL.” This memorandum of decision and order is limited to plaintiff’s
Request No. 2, wherein she has requested 10 reports authored by Dr. James Bress with
respect to United of Omaha Life Insurance Company claimants immediately before, and
10 reports authored immediately after, November 26, 2012. After consideration of the
parties’ written submissions and their oral arguments, the request is DENIED.
II. STATEMENT OF FACTS
The plaintiff, Amy Weinberg, is a former employee of Euromoney, Inc. and, as
such, was covered by the Euromoney, Inc. Long Term Disability Plan. The defendant,
United of Omaha Life Insurance Company (“United”), is the Claims Administrator and
insurer of the Plan. Ms. Weinberg applied for long term disability (“LTD”) benefits and
her application was denied. In connection with its consideration of her application,
United had retained Dr. James Bress to review Ms. Weinberg’s medical records. Dr.
Bress recommended that Ms. Weinberg’s application be denied in a report in which he
detailed the medical records he reviewed, and those portions of the record on which he
based his opinion.
Ms. Weinberg contends that Dr. Bress obtains a significant portion of his income
from his work for insurance companies, and that Dr. Bress is biased in favor of United.
She seeks discovery in connection with this contention. United has agreed to provide
some of the discovery requested by Ms. Weinberg, including the number of files Dr.
Bress and his employer have reviewed on behalf of United, and the amount of income
Dr. Bress has received. At issue is whether United should be ordered to produce files
authored by Dr. Bress both before and after his report relating to Ms. Weinberg. It is the
plaintiff’s contention that these reports may show Dr. Bress’ bias, especially if they are
“cookie-cutter” reports without much analysis. As detailed herein, Ms. Weinberg has not
met her heavy burden of proving the need for such discovery.
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III. ANALYSIS
It is undisputed that discovery is disfavored in ERISA cases, because “[a]ppeals of
ERISA benefit denials ‘typically are adjudicated on the record compiled before the plan
administrator.’” Semedo v. Boston Bldg. Serv. Employees Trust Fund Long Term
Disability Plan, No. 12-11697-RWZ, 2013 WL 3805130, at *1 (D. Mass. July 19, 2013)
(quoting Denmark v. Liberty Life Assur. Co., 566 F.3d 1, 10 (1st Cir. 2010)). In
addition, discovery is disfavored due to “concerns about efficient administration that
underlie the ERISA statute itself.” Liston v. Unum Corp. Officer Severance Plan, 330
F.3d 19, 26 (1st Cir. 2003). Nevertheless, “where there has been a showing of bias or
conflict of interest[,]” some limited discovery may be available to assist the court in
deciding whether the structural conflict which exists “when an entity plays a ‘dual role’
by both determining an employee’s eligibility under an employee benefit plan and paying
the benefits” “has morphed into an actual conflict.” Al-Abbas v. Metlife Ins. Co. of Am.,
No. 12-11585-FDS, 2013 WL 5947996, at *1, 3 (D. Mass. Nov. 4, 2013) (internal
citations omitted). Even in such situations, however, at a minimum there must be a “very
good reason” in order “to overcome the strong presumption that the record on review is
limited to the record before the administrator.” Liston, 330 F.3d at 23. “[A] bare
allegation of structural conflict does not ‘mandate automatic discovery.’” Al-Abbas,
2013 WL 5947996, at *3 (quoting McGahey v. Harvard Univ. Flexible Benefits Plan,
2009 WL 799464, at *2 (D. Mass. Mar. 25, 2009)). Finally, “any discovery on this
matter ‘must be allowed sparingly and, if allowed at all, must be narrowly tailored so as
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to leave the substantive record essentially undisturbed.’” Al-Abbas, 2013 WL 5947996,
at *3 (quoting Denmark, 566 F.3d at 10).
In the instant case, United has already agreed to provide information about the
amount of income Dr. Bress has received from a review of its records, as well as information concerning the number of reviews he and his employer have conducted. The
plaintiff can use this information to argue that the court should view Dr. Bress’ opinion
with skepticism.1 However, Ms. Weinberg’s conclusory assertion that Dr. Bress is biased
is insufficient to warrant additional discovery on this issue. The plaintiff has not
established that United has exhibited a bias against claimants other than the inherent
structural conflict which exists due to United’s dual role. She has not provided “the kind
of ‘colorable claim of bias’ that might constitute a ‘good reason’ to set aside the
presumption against discovery.” Petrone v. Long Term Disability Income Plan, 935 F.
Supp. 2d 278, 291 (D. Mass. 2013) (quoting Denmark, 566 F.3d at 10).
Moreover, Ms. Weinberg’s argument that she needs to review actual reports
generated by Dr. Bress is defeated by the record. The report Dr. Bress issued makes
express references to materials in Ms. Weinberg’s medical records, and is obviously not a
“cookie-cutter” report. Nothing would be gained by producing other reports generated by
Dr. Bress, even if he determined that other claimants were not entitled to benefits. Thus,
even assuming, arguendo, that the production of other reports would be appropriate in
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This court expresses no opinion as to the persuasiveness of such an argument.
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certain circumstances, this is not one of those cases. See Klein v. Northwestern Mut. Life
Ins. Co., 806 F. Supp. 2d 1120, 1128 (S.D. Cal. 2011) (while the court noted that “a
sampling of reports a doctor has prepared in other claims may also be appropriate[,]” it
did not order such a production in that case); see also McGahey v. Harvard Univ.
Flexible Benefits Plan, 685 F. Supp. 2d 168, 179 (D. Mass. 2009) (in light of the
“closeness of the case” because the administrator failed to even address evidence
favorable to the claimant, court allowed discovery into the total number of reports
commissioned from the challenged doctors, and the raw number of claims that each of the
doctors recommended be denied and allowed; significantly, reports relating to other
claimants were not ordered to be produced). In short, there is no basis to order the
production of reports which relate to other claimants who are not involved in the instant
dispute.
IV. CONCLUSION
For all the reasons detailed herein, the plaintiff’s request for the production of
additional reports written by Dr. Bress is denied.
/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge
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