Weissman v. UnitedHealthcare Insurance Company et al

Filing 57

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. Defendants' motion to dismiss, [ECF No. #46 ], is DENIED. SO ORDERED. (McDonagh, Christina)

Case 1:19-cv-10580-ADB Document 57 Filed 03/08/21 Page 1 of 21

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiff,
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v.
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UNITEDHEALTHCARE INSURANCE
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COMPANY, UNITEDHEALTHCARE
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SERVICES, LLC, and INTERPUBLIC
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GROUP OF COMPANIES, INC. CHOICE
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PLUS PLAN,
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Defendants.
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_____________________________________ *
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RICHARD COLE,
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Plaintiff,
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v.
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UNITEDHEALTHCARE INSURANCE
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COMPANY,
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Defendant.
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_____________________________________ *
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ZACHARY RIZZUTO,
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Plaintiff,
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v.
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UNITEDHEALTHCARE INSURANCE
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COMPANY, UNITEDHEALTHCARE
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SERVICES, INC., and THE HERTZ
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CUSTOM BENEFIT PROGRAM,
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Defendants.
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KATE WEISSMAN,

1

Civil Action Nos. 19-cv-10580-ADB
19-cv-12224-ADB
19-cv-12239-ADB

Case 1:19-cv-10580-ADB Document 57 Filed 03/08/21 Page 2 of 21

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
BURROUGHS, D.J.
Plaintiffs Kate Weissman, Richard Cole, and Zachary Rizzuto (together, “Plaintiffs”)
bring this putative class action suit, alleging that Defendants UnitedHealthcare Insurance
Company (“UnitedHealthcare Insurance”), UnitedHealthcare Services, LLC (“UnitedHealthcare
Services,” and, with UnitedHealthcare Insurance, “UnitedHealthcare”), Interpublic Group of
Companies, Inc. Choice Plus Plan (the “Interpublic Plan”), and The Hertz Custom Benefit
Program (the “Hertz Plan,” with the Interpublic Plan, the “Plans,” and with UnitedHealthcare
and the Interpublic Plan, “Defendants”) violated the Employee Retirement Income Security Act
of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). See [ECF No. 41 (“Am. Compl.”)]. More
specifically, Plaintiffs assert that UnitedHealthcare deceptively and unfairly administered their
ERISA plans by refusing to cover Proton Beam Radiation Therapy (“PBRT”), a form of
radiation used to destroy cancerous tumors, because it is more expensive than more traditional
cancer treatments such as Intensity Modulated Radiotherapy (“IMRT”). [Id. ¶¶ 1–3]. Currently
before the Court is Defendants’ motion to dismiss. [ECF No. 46]. For the reasons set forth
below, the motion is DENIED.
I.

BACKGROUND
A.

Factual Background

For purposes of the instant motion to dismiss, the Court, as it must, “accept[s] as true all
well-pleaded facts alleged in the complaint and draw[s] all reasonable inferences therefrom in
the pleader’s favor.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).

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1.

The Parties

Ms. Weissman is a Massachusetts citizen who resides in Suffolk County. [Am. Compl.
¶ 4]. Mr. Cole is a Florida citizen who lives in Miami-Dade County. [Id. ¶ 5]. Mr. Rizzuto is a
Florida citizen who resides in Lee County. [Id. ¶ 6]. All three are participants in group health
plans governed by ERISA and administered by UnitedHealthcare. [Id. ¶¶ 4–6].
UnitedHealthcare is a healthcare plan provider and insurer that provides, administers, and insures
health plans. [Id. ¶¶ 7–8]. It acts as a fiduciary with respect to its administration of ERISA
plans, and, in so doing, interprets and applies ERISA plan terms, makes coverage and benefit
decisions in its sole discretion, and provides payment to plan participants and beneficiaries
and/or their providers. [Id. ¶ 20]. Regardless of whether a given health insurance plan is fully
insured (i.e., UnitedHealthcare pays the benefits out of its own assets) or self-funded (i.e., the
employer or plan sponsor is ultimately responsible for paying benefits), UnitedHealthcare
administers the plan and makes all benefits determinations. [Id. ¶ 21]. The Plans are self-funded
group health plans organized and regulated under ERISA. [Id. ¶¶ 9–10].
2.

PBRT

PBRT is a medical procedure that uses protons to deliver a curative dose of radiation to a
cancerous tumor, while reducing radiation doses to healthy tissues and organs. [Am. Compl.
¶ 40]. It has fewer complications and side effects than IMRT because proton beams are so
targeted that patients can tolerate greater doses of radiotherapy than with the photon beams that
are used in IMRT. [Id.]. The beam used in PBRT can be adjusted to match the size and shape of
the cancerous tissue being targeted, which limits the degree to which healthy tissue is harmed.
[Id.]. PBRT, which was invented in 1946, has been used to treat cancer since the 1950s, was
approved as a cancer treatment by the Food and Drug Administration (“FDA”) in 1988, and,

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today, is recognized by numerous medical organizations across the United States as a safe and
effective method for treating cancer. [Id. ¶ 41].
As set forth in its PBRT Medical Policy No. T0132 (the “PBRT Policy”),
UnitedHealthcare generally takes the position that PBRT is experimental or investigational, and
therefore not a covered treatment under most of the group health plans it administers. [Am.
Compl. ¶ 42]. According to Plaintiffs, the PBRT Policy ignores conclusions from the medical
community regarding the efficacy of PBRT and relies on outdated and unreliable scientific
studies. [Id. ¶ 44]. On January 1, 2019, UnitedHealthcare issued a revised policy (the “New
PBRT Policy”) to reflect the fact that it no longer considered PBRT to be experimental insofar as
it is used to treat prostate cancer. [Id. ¶ 45].
3.

Ms. Weissman’s Allegations

Ms. Weissman is a beneficiary under the Interpublic Plan, which is administered by
UnitedHealthcare. [Am. Compl. ¶ 24]. The Interpublic Plan “pays Benefits for therapeutic
treatments . . ., including . . . intravenous chemotherapy or other intravenous infusion therapy
and radiation oncology.” [Id. ¶ 26]. That said, the Interpublic Plan limits coverage to healthcare
services that are “Medically Necessary,” defined as follows:
Medically Necessary - health care services provided for the purpose of preventing,
evaluating, diagnosing or treating a Sickness, Injury, Mental Illness,
substance-related and addictive disorders, condition, disease or its symptoms, that
are all of the following as determined by the Claims Administrator or its designee,
within the Claims Administrator’s sole discretion. The services must be:
• In accordance with Generally Accepted Standards of Medical Practice.
• Clinically appropriate, in terms of type, frequency, extent, site and
duration, and considered effective for your Sickness, Injury, Mental
Illness, substance-related and addictive disorders, disease or its
symptoms.
• Not mainly for your convenience or that of your doctor or other health
care provider.
• Not more costly than an alternative drug, service(s) or supply that is at
least as likely to produce equivalent therapeutic or diagnostic results as
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to the diagnosis or treatment of your Sickness, Injury, disease or
symptoms.
[Id. ¶¶ 26–27]. Additionally, the Interpublic Plan contains a number of exclusions from
coverage, including an exclusion for experimental or investigational services (the “Experimental
Exclusion”), which are defined as follows:
Experimental or Investigational Services - medical, surgical, diagnostic,
psychiatric, mental health, substance-related and addictive disorders or other health
care services, technologies, supplies, treatments, procedures, drug therapies,
medications or devices that, at the time the Claims Administrator and the Plan
Administrator make a determination regarding coverage in a particular case, are
determined to be any of the following:
• Not approved by the U.S. Food and Drug Administration (FDA) to be
lawfully marketed for the proposed use and not identified in the
American Hospital Formulary Service or the United States
Pharmacopoeia Dispensing Information as appropriate for the
proposed use.
• Subject to review and approval by any institutional review board for
the proposed use. (Devices which are FDA approved under the
Humanitarian Use Device exemption are not considered to be
Experimental or Investigational.)
• The subject of an ongoing Clinical Trial that meets the definition of a
Phase I, II or III Clinical Trial set forth in the FDA regulations,
regardless of whether the trial is actually subject to FDA oversight.
[Id. ¶ 28].
In October 2015, Ms. Weissman was diagnosed with Stage IIB squamous cell carcinoma
of the cervix. [Am. Compl. ¶ 61]. She completed successful traditional treatments in December
2015. [Id.]. A few months later, however, a PET/CT scan revealed two small lymph nodes in
her para-aortic region, which were confirmed to be squamous cell carcinoma. [Id. ¶ 62]. She
underwent laparoscopic resection of the nodes in April 2016. [Id.]. Subsequently,
Ms. Weissman was referred to Dr. Andrea L. Russo, a professor at Harvard Medical School and
a member of Massachusetts General Hospital’s Department of Radiation Oncology, for
consideration of PBRT. [Id. ¶ 63]. Dr. Russo, along with other members of Ms. Weissman’s
care team, determined that PBRT was essential for multiple medical reasons. [Id.]. Pursuant to
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the Interpublic Plan’s protocols, Ms. Weissman’s providers contacted UnitedHealthcare to seek
prior authorization for her treatment plan, which included PBRT. [Id. ¶ 64]. In an April 6, 2016
letter, UnitedHealthcare denied coverage based on the PBRT Policy and the Experimental
Exclusion. [Id. ¶¶ 64–65]. Ms. Weissman and Dr. Russo appealed the adverse decision, both
within UnitedHealthcare and with an external review organization, but were unsuccessful in
obtaining coverage for Ms. Weissman’s PBRT treatment. [Id. ¶¶ 66–76]. Despite the lack of
coverage, Ms. Weissman underwent successful PBRT treatment and is now cancer-free.
[Id.¶¶ 77–78]. Her treatment cost $95,000. [Id. ¶ 77].
4.

Mr. Cole’s Allegations

Mr. Cole is covered by a health insurance plan issued on behalf of his employer, Cole,
Scott & Kissane, P.A. (the “CSK Plan”) and administered by UnitedHealthcare. [Am. Compl.
¶ 29]. Under the CSK Plan, Mr. Cole is covered for healthcare services that are “medically
necessary” (i.e., “health care services provided for the purpose of preventing, evaluating,
diagnosing or treating a Sickness, Injury, Mental Illness, substance-related and addictive
disorders, condition, disease or its symptoms”). [Id. ¶¶ 30–31]. The CSK Plan includes the
same Experimental Exclusion as Ms. Weissman’s plan. [Id. ¶ 32].
In April 2018, Mr. Cole was diagnosed with high-risk prostate cancer. [Am. Compl.
¶ 81]. In May 2018, his radiation oncologist, Dr. Marcio Fagundes of the Miami Cancer Institute
at Baptist Health South Florida, recommended that Mr. Cole undergo PBRT because, among
other reasons, it would have a higher likelihood of achieving a better outcome than IMRT. [Id.].
UnitedHealthcare denied Mr. Cole’s request for pre-authorization, citing the Experimental
Exclusion and the PBRT Policy. [Id. ¶ 82]. Mr. Cole and Dr. Fagundes appealed the coverage
denial, both within UnitedHealthcare’s internal appeal channels and externally, but were

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unsuccessful in obtaining coverage for Mr. Cole’s PBRT treatment. [Id. ¶¶ 83–94].
Nonetheless, Mr. Cole underwent PBRT treatment, with positive results. [Id. ¶ 95]. His
out-of-pocket expenses were $85,000. [Id.].
5.

Mr. Rizzuto’s Allegations

Mr. Rizzuto is a beneficiary under the Hertz Plan, which is administered by
UnitedHealthcare. [Am. Compl. ¶ 33]. The Hertz Plan provides coverage that is nearly identical
to the coverage provided under Ms. Weissman’s plan. Compare [id. ¶¶ 26–28], with [id.
¶¶ 34–36].
Mr. Rizzuto was diagnosed with brain cancer in August 2017. [Am. Compl. ¶ 98]. In
December 2017 and again in January 2018, Mr. Rizzuto underwent craniotomy procedures,
which led to adverse side effects including cognitive deficits, fatigue, and loss of peripheral
vision. [Id. ¶¶ 100–01]. Subsequently, Mr. Rizzuto’s radiation oncologist, Dr. Robert Lustig,
the Chief of Clinical Operations for Radiation Oncology and a professor of Clinical Radiation
Oncology at the University of Pennsylvania, recommended PBRT. [Id. ¶ 101]. Mr. Rizzuto’s
doctors believed that PBRT was safer than traditional radiation and would spare healthy brain
tissue. [Id. ¶ 102]. Accordingly, Mr. Rizzuto sought prior authorization from UnitedHealthcare
for his PBRT treatment. [Id.]. Shortly thereafter, UnitedHealthcare denied coverage based on
the PBRT Policy and the Experimental Exclusion. [Id. ¶ 104]. Mr. Rizzuto, his wife, and his
doctors appealed the decision, both internally and externally, but could not convince
UnitedHealthcare to change its position. [Id. ¶¶ 105–115]. Mr. and Mrs. Rizzuto raised the
$126,000 needed for Mr. Rizzuto’s PBRT treatment through a Go Fund Me page. [Id. ¶ 116].
Mr. Rizzuto’s tumor is now stable. [Id. ¶ 117].

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B.

Procedural Background

Ms. Weissman filed her original complaint in this action on March 26, 2019. [ECF No.
1]. On March 25, 2020, the Court granted Defendants’ motion to dismiss, but gave
Ms. Weissman leave to amend. [ECF No. 36]. On April 8, 2020, the Court consolidated
Ms. Weissman’s case with Mr. Cole’s, which was transferred to this district from the United
States District Court for the Southern District of Florida, [ECF No. 39], and on April 13, 2020,
the Court further consolidated the cases with Mr. Rizzuto’s, which was transferred to this district
from the United States District Court for the Middle District of Florida, [ECF No. 40].
On May 15, 2020, Plaintiffs filed their two-count consolidated, amended class-action
complaint. [Am. Compl.]. Their proposed class consists of:
All persons covered under ERISA-governed plans, administered or insured by
UnitedHealthcare, whose requests for PBRT were denied at any time within the
applicable statute of limitations, or whose requests for PBRT will be denied in the
future, based upon a determination by UnitedHealthcare that PBRT is not medically
necessary or is experimental, investigational or unproven.
[Id. ¶ 126]. 1 In Count I, asserted against UnitedHealthcare, they allege that UnitedHealthcare
breached its fiduciary duties “by adopting, implementing, and applying a policy to deny
coverage for PBRT based on the Experimental Exclusion under its Plans, when such a finding
was contrary to generally accepted practices and to the terms of the Plans.” [Id. ¶ 146]; see [id.
¶ 153]. Pursuant to 29 U.S.C. § 1132(a)(3), ERISA’s “catch-all” provision, they seek an

1

Excluded from the putative class are:
(a) Defendant, including any entity or division in which Defendant has a controlling
interest, as well as its agents, representatives, officers, directors, employees,
trustees, and other entities related to, or affiliated with Defendant, (b) Class
Counsel, and (c) the Judge to whom this case is assigned and any members of the
Judge’s staff or immediate family.

[Am. Compl. ¶ 127].

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injunction requiring United Healthcare to: (1) “[r]etract its categorical denials of PBRT prior
authorization requests and/or claims”; (2) “[p]rovide notice to all PBRT Class Members who
have had prior authorization requests or claims for PBRT denied”; (3) “[r]e-evaluate all prior
authorization requests or claims for PBRT by Plaintiffs and the PBRT Class Members under an
ERISA-compliant procedure and, where warranted, reimburse Plaintiffs and the PBRT Class
Members for amounts incurred for PBRT as a result of coverage denials in violation of ERISA”;
and (4) “[a]ccount for and disgorge any profits UnitedHealthcare may have realized by virtue of
its improperly denied claims and violations of ERISA.” [Id. at 43].
In Count II, asserted against all defendants, Plaintiffs allege that UnitedHealthcare
improperly denied their benefits. [Am. Compl. ¶¶ 154–61]. Under 29 U.S.C. § 1132(a)(1)(B),
they seek: (1) an award of the amounts owed to them; or (2) the injunctive relief described
above. [Id. at 43–44]. 2
On June 29, 2020, Defendants moved to dismiss. [ECF No. 46]. Plaintiffs opposed on
August 10, 2020, [ECF No. 50], and Defendants replied on September 2, 2020, [ECF No. 54].
II.

LEGAL STANDARD
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all

well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all
reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d
74, 76, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint
must set forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

2

In connection with both counts, Plaintiffs seek pre- and post-judgment interest as well as
attorneys’ fees. [Am. Compl. at 44].

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555 (2007). The alleged facts must be sufficient to “state a claim to relief that is plausible on its
face.” Id. at 570.
“To cross the plausibility threshold a claim does not need to be probable, but it must give
rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40,
44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of
plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint
should be read as a whole, not parsed piece by piece to determine whether each allegation, in
isolation, is plausible.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). “The plausibility standard
invites a two-step pavane.” Elsevier, 732 F.3d at 80 (citing Grajales, 682 F.3d at 45). First, the
Court “must separate the complaint’s factual allegations (which must be accepted as true) from
its conclusory legal allegations (which need not be credited).” Id. (quoting Morales-Cruz v.
Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court “must determine whether
the remaining factual content allows a ‘reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Morales-Cruz, 676 F.3d at 224).
III.

DISCUSSION
A.

Breach of Fiduciary Duty

As noted above, Plaintiffs allege that UnitedHealthcare breached its fiduciary duties by
“adopting, implementing, and applying a policy to deny coverage for PBRT based on the
Experimental Exclusion under its Plans, when such a finding was contrary to generally accepted
practices and to the terms of the Plans” and seek relief under 29 U.S.C. § 1132(a)(3). [Am.
Compl. ¶ 146]. Defendants make two arguments as to why Plaintiffs’ breach of fiduciary duty

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claim should be dismissed. For the reasons discussed below, the Court finds each unconvincing,
and Defendants’ motion to dismiss Plaintiffs’ breach of fiduciary duty claim, [ECF No. 46], is
therefore DENIED.
1.

The Court’s Prior Ruling Does Not Bar Plaintiffs’ Claim

Defendants argue that the Court already determined, in its March 25, 2020 Memorandum
and Order granting Defendants’ motion to dismiss Ms. Weissman’s complaint (the “March 2020
Order”), [ECF No. 36], that Plaintiffs’ breach of fiduciary duty claim fails as a matter of law, and
that the claim should therefore be dismissed, [ECF No. 47 at 10–12]. Plaintiffs respond that
Defendants misread the March 2020 Order and that even if their denial of benefits and breach of
fiduciary duty claims are ultimately found to be duplicative, the Court should not dismiss either
at the motion to dismiss stage. [ECF No. 50 at 9–11]. In the March 2020 Order, the Court found
the following:
ERISA provides various civil enforcement mechanisms in 29 U.S.C. § 1132(a).
Each subsection provides a separate cause of action, requiring different elements
and providing different relief. Section 1132(a)(1)(B) allows a participant in an
ERISA-governed plan to bring a civil action to recover benefits due to him under
the terms of his plan, to enforce his rights under the terms of the plan, or to clarify
his rights to future benefits under the terms of the plan. Section 1132(a)(3),
meanwhile, provides that a participant may bring a civil action (A) to enjoin any
act or practice which violates any provision of this subchapter or the terms of the
plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations
or (ii) to enforce any provisions of this subchapter or the terms of the plan.
The Supreme Court has explained that § 1132(a)(1)(B) allows a plaintiff to recover
benefits due under the plan, to enforce rights under the terms of the plan, and to
obtain a declaratory judgment of future entitlement to benefits under the provisions
of the plan contract. The Supreme Court has also said that § 1132(a)(3) is a
catch-all provision that act[s] as a safety net, offering appropriate equitable relief
for injuries . . . not elsewhere adequately remed[ied] under § 1132(a). [F]ederal
courts have uniformly concluded that, if a plaintiff can pursue benefits under the
plan pursuant to Section [(a)](1), there is an adequate remedy under the plan which
bars a further remedy under Section [(a)](3).

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In response, Weissman argues that it is premature to determine whether she can
bring claims under both § 1132(a)(1)(B) and § 1132(a)(3). Other circuits that have
considered the issue have found that a plaintiff may plead claims under both
§ 1132(a)(1)(B) and § 1132(a)(3) at the motion to dismiss stage, so long as the
plaintiff does not actually recover under both theories. This Court recently found
that it is inappropriate to dismiss a complaint that brings claims under both
§ 1132(a)(1)(B) and § 1132(a)(3) as duplicative because plaintiffs can bring claims
under both sections even though plaintiffs cannot recover under both provisions.
In this case, however, where the complaint only seeks relief under § 1132(a)(3) and
makes no mention of § 1132(a)(1)(B), Weissman’s argument that she may seek
relief under both statutes is inapposite.
Here, Weissman seeks a disgorgement of any profits that the Defendants made by
wrongfully denying coverage, and she also seeks an injunction compelling
UnitedHealthcare to (1) provide coverage for proton beam therapy, (2) provide
notice to plan members of that coverage, and (3) re-evaluate all prior authorization
requests for coverage for proton beam therapy. Because the complaint seeks relief
that is generally available under § 1132(a)(1)(B), it must be dismissed because it
has inappropriately repackaged a request for relief under § 1132(a)(1)(B) as an
action under § 1132(a)(3).
[ECF No. 36 at 11–13 (alterations in original) (citations and internal quotation marks omitted)].
Additionally, the Court noted that Ms. Weissman’s “complaint inappropriately seeks only relief
under 29 U.S.C. § 1132(a)(3).” [Id. at 16 (emphasis added)].
Contrary to Defendants’ assertion, the problem with Ms. Weissman’s initial complaint
was not that her § 1132(a)(3) claim was deficient as a matter of law but rather that bringing a
standalone § 1132(a)(3) claim, where § 1132(a)(1)(B) might provide an adequate remedy, is
inappropriate. In other words, an ERISA plaintiff cannot eschew the statute’s preferred
enforcement mechanism, § 1132(a)(1)(B), for its catch-all provision, § 1132(a)(3), by electing to
forgo a § 1132(a)(1)(B) claim. The amended complaint remedies that problem by asserting
claims under both § 1132(a)(3) and § 1132(a)(1)(B). Although Defendants are correct that
Plaintiffs will not be permitted to ultimately recover under § 1132(a)(3) if § 1132(a)(1)(B)
provides an adequate remedy, for the reasons noted in the March 2020 Order, the Court need not
dismiss the § 1132(a)(3) claim at this stage merely because it may turn out to be duplicative.

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Accordingly, the March 2020 Order does not foreclose Plaintiffs’ breach of fiduciary duty
claim. 3
2.

Plaintiffs Have Not Alleged a Breach of Fiduciary Duty Based Solely on
the Adoption of the PBRT Policy

Defendants next argue that Plaintiffs cannot challenge UnitedHealthcare’s PBRT Policy
because the establishment of a clinical coverage policy used for interpreting plan terms is not a
fiduciary act under ERISA. [ECF No. 47 at 13–14; ECF No. 54 at 10–11]. Plaintiffs maintain
that they are not challenging UnitedHealthcare’s mere establishment of the PBRT Policy but
rather its application of the policy to their claims. [ECF No. 50 at 11–14].
As the Court noted in the March 2020 Order, Defendants are correct that Plaintiffs cannot
assert that UnitedHealthcare’s establishment of the PBRT Policy is, itself, a breach of fiduciary
duty under ERISA. See [ECF No. 36 at 9–11]. The Court, however, does not understand the
amended complaint to be advancing a theory based only on the creation of the PBRT Policy.
Plaintiffs allege that UnitedHealthcare breached its fiduciary duties by denying their requests for
pre-authorization for PBRT treatment based on the PBRT Policy and the Experimental
Exclusion. [Am. Compl. ¶ 146 (“UnitedHealthcare violated these duties by adopting,
implementing, and applying a policy to deny coverage for PBRT based on the Experimental
Exclusion under its Plans . . .” (emphasis added)); id. ¶ 124 (“By drafting, implementing, and
applying its PBRT Policy, UnitedHealthcare sacrificed the interests of insureds like Plaintiffs

3

The parties dispute the applicability of the law-of-the-case doctrine as to the March 2020 Order,
noting, among other things, that Messrs. Cole and Rizzuto were not parties to the litigation when
the Court made its ruling. See [ECF No. 47 at 11–12; ECF No. 50 at 9, 9 n.1; ECF No. 54 at 8, 8
n.1]. The Court need not decide whether any exceptions apply or whether the law-of-the-case
doctrine binds non-parties whose claims have since been consolidated because the Court did not,
in fact, find that Plaintiffs’ § 1132(a)(3) claim was legally deficient.

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. . .” (emphasis added))]. Plaintiffs do not object to the PBRT Policy’s mere existence but rather
to UnitedHealthcare’s reliance on it in denying coverage for PBRT treatment.
B.

Denial of Benefits

As noted above, Plaintiffs allege that UnitedHealthcare improperly denied them benefits
to which they were entitled and seek an award reimbursing them for the cost of their PBRT
treatment under § 1132(a)(1)(B). [Am. Compl. ¶¶ 154–61; id. at 43–44]. Defendants make two
arguments as to why Plaintiffs’ denial of benefits claim should be dismissed. For the reasons
discussed below, each is unpersuasive, and Defendants’ motion to dismiss Plaintiffs’ denial of
benefits claim, [ECF No. 46], is therefore DENIED.
1.

Plaintiffs Have Adequately Alleged that the Exclusions Do Not Apply

Defendants argue that Plaintiffs have failed to plausibly allege that both potentially
applicable coverage exclusions are inapplicable. [ECF No. 47 at 14–19; ECF No. 54 at 12–16].
Plaintiffs maintain that their allegations on this issue are sufficient to withstand a motion to
dismiss. [ECF No. 50 at 14–18].
As an initial matter, by focusing on exclusions, Defendants seem to concede that PBRT
was “medically necessary” for each plaintiff. See [ECF No. 47 at 14–19 (focusing exclusively
on exclusions); ECF No. 54 at 12–16]. Additionally, Plaintiffs appear to accept that it is their
burden to plead facts suggesting that the exclusions are inapplicable. See [ECF No. 50 at 14–18
(focusing on sufficiency of allegations and not challenging Defendants’ statement concerning
burden)]. Accordingly, the question before the Court is whether Plaintiffs’ denial of benefits
claim is viable in light of the potentially applicable exclusions and Plaintiffs’ factual allegations
regarding those exclusions.

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The first potentially applicable exclusion is the Experimental Exclusion, which excludes
coverage if the healthcare service in question is determined to be: (1) not approved by the FDA;
(2) subject to review and approval by any institutional review board; or (3) the subject of an
ongoing clinical trial. [Am. Compl. ¶¶ 28, 32, 36]. Defendants admit that Plaintiffs have
adequately alleged that the FDA approved PBRT in 1988, [ECF No. 47 at 16], but argue that
Plaintiffs have failed to plead facts suggesting that PBRT does not fall into the exclusion’s other
two categories, [id. at 16–19].
The second potentially applicable exclusion is the unproven services exclusion, which
exempts from coverage “services . . . that are determined not to be effective for treatment of the
medical condition and/or not to have a beneficial effect on health outcomes due to insufficient
and inadequate clinical evidence from well-conducted randomized controlled trials or cohort
studies in the prevailing published peer-reviewed medical literature.” [Am. Compl. ¶ 53].
Defendants assert that Plaintiffs have pointed to no specific clinical evidence from controlled
trials or cohort studies in peer-reviewed medical literature evidencing that PBRT is medically
effective. [ECF No. 47 at 17–18].
Given Plaintiffs’ burden at the motion to dismiss stage, see supra, Section II, their
allegations are sufficient to survive a motion to dismiss. Specifically, Plaintiffs allege that,
among other things:
•
•
•
•

Medicare and Medicaid cover PBRT, [Am. Compl. ¶ 39];
PBRT has been used to treat cancer since the 1950s, [id. ¶ 41];
The National Association for Proton Therapy, the Alliance for Proton Therapy
Access, and other medical organizations and studies have validated the safety
and effectiveness of PBRT, [id.];
Multiple cancer facilities and providers, including Baptist Hospital’s Miami
Cancer Institute, the MD Anderson Cancer Center, Loma Linda University, the
University of Florida, the University of Maryland, Northwestern University, the
Mayo Clinic, Emory University, Case Western Reserve University,
Washington University in St. Louis, the University of Washington, the New
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•
•
•
•
•

York Proton Center, and the Texas Center for Proton Therapy regularly
recommend and use PBRT, [id.];
UnitedHealthcare covers PBRT for individuals younger than nineteen, [id.
¶ 43];
One of UnitedHealthcare’s affiliates recently pledged over $15 million to
construct and operate a proton center in New York City, [id. ¶ 57];
Ms. Weissman’s medical team considered PBRT to be her best option and did
not consider it to be experimental or investigational, [id. ¶¶ 63, 67, 73];
Mr. Cole’s doctor believed PBRT would be more effective than IMRT and did
not consider it to be experimental, [id. ¶¶ 81, 92]; and
Mr. Rizzuto’s doctors considered PBRT to be his best option and did not
consider it to be experimental, [id. ¶¶ 101–02, 105–06].

Taking these factual allegations together, see Hernandez-Cuevas, 723 F.3d at 103, drawing on its
experience and common sense, see Grajales, 682 F.3d at 44, and making all reasonable factual
inferences in Plaintiffs’ favor, see Gilbert, 915 F.3d at 80, the Court concludes that Plaintiffs
have plausibly alleged that PBRT is not subject to either of the two asserted exclusions.
As to the Experimental Exclusion, based on the factual allegations, the Court can
reasonably infer that PBRT, at least insofar as it is used to treat Plaintiffs’ specific conditions,
was not being reviewed by an institutional review board or the subject of an ongoing clinical trial
because if either were pending, Plaintiffs’ doctors specifically, and the medical community more
generally, would not have characterized PBRT as safe.
As to the unproven services exclusion, the Court can reasonably infer that PBRT, at least
to the extent it is used to treat Plaintiffs’ conditions, is effective because otherwise Plaintiffs’
doctors would not have recommended it to their patients and renowned medical organizations
and cancer treatment centers would not trumpet its effectiveness and recommend its use.
Whether the exclusions are, in fact, applicable is a question for a later day but because Plaintiffs’

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factual allegations allow a reasonable inference that the PBRT is not barred by either exception,
they have put forth enough to survive a motion to dismiss.4 See Twombly, 550 U.S. at 570.
2.

Plaintiffs Have Adequately Alleged that the Denial Was Arbitrary and
Capricious

Defendants argue that Plaintiffs have failed to plausibly allege that the benefit
determinations at issue were arbitrary and capricious. [ECF No. 47 at 19–22; ECF No. 54 at
16–17]. Plaintiffs maintain that their allegations are sufficient at this stage. [ECF No. 50 at
18–20].
Plaintiffs specifically allege that UnitedHealthcare had discretion to interpret plans and
make benefit determinations, see [Am. Compl. ¶¶ 22, 24, 29, 33], and seem to concede that the
arbitrary and capricious standard is appropriate, see [ECF No. 50 at 18–20 (focusing on
sufficiency of factual allegations and not challenging Defendants’ statement of the proper
standard)]. Accordingly, the question before the Court is whether Plaintiffs have plausibly
alleged that UnitedHealthcare’s denial of their benefits was arbitrary and capricious.
Given Plaintiffs’ burden at the motion to dismiss stage, see supra, Section II, they have
alleged enough to withstand a motion to dismiss. Specifically, Plaintiffs allege the following
facts, among others:
•

UnitedHealthcare covers PBRT for those younger than nineteen but not those
older than nineteen despite a lack of medical studies supporting such an
age-based distinction, [Am. Compl. ¶ 43];

4

Defendants argue that, at a minimum, the Court should “dismiss the Amended Complaint to the
extent Plaintiffs assert claims for coverage of PBRT for conditions other than cervical, prostate,
and brain cancer.” [ECF No. 47 at 18–19]. In essence, Defendants are seeking to limit the
putative class to those individuals with the particular types of cancer that Plaintiffs had. The
First Circuit has directed district courts to “exercise caution when striking class action
allegations based solely on the pleadings.” Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59
(1st Cir. 2013). Accordingly, Defendants’ arguments are better addressed during the class
certification process should Plaintiffs move for class certification in the future. See O’Leary v.
N.H. Boring, Inc., 176 F. Supp. 3d 4, 13 (D. Mass. 2016).

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•
•
•
•
•
•

The PBRT Policy is based on out-of-date scientific literature and is infrequently
updated, [id. ¶ 44];
UnitedHealthcare issued the New PBRT Policy but did not cite any significant
clinical developments indicating why the policy was changed, [id. ¶ 46];
UnitedHealthcare failed to address the information that Mr. Cole’s doctor
provided concerning PBRT’s safety and efficacy, [id. ¶ 93];
UnitedHealthcare’s denial of Mr. Rizzuto’s request for pre-authorization was
ambiguous and unspecific, [id. ¶ 104];
The medical directors who reviewed Mr. Rizzuto’s appeals were specialists in
family medicine and internal medicine, not oncology, [id. ¶¶ 107, 109]; and
The individual handling Mr. Rizzuto’s appeal failed to discuss the evidence and
literature that Mrs. Rizzuto cited in her letter, [id. ¶ 115].

Taking these factual allegations together, see Hernandez-Cuevas, 723 F.3d at 103, drawing on its
experience and common sense, see Grajales, 682 F.3d at 44, and making all reasonable factual
inferences in Plaintiffs’ favor, see Gilbert, 915 F.3d at 80, the Court concludes that Plaintiffs
have plausibly alleged that Defendants acted arbitrarily and capriciously. Defendants emphasize
that Plaintiffs themselves allege that both UnitedHealthcare’s physicians and external review
organizations reviewed Plaintiffs’ requests, see [ECF No. 47 at 19–21], and note the fact that
portions of the PBRT Policy support UnitedHealthcare’s coverage determinations, see [id. at
21–22]. These allegations and facts, however, do not render Plaintiffs’ claim implausible as a
matter of law. Although the facts advanced by Defendants may carry the day at summary
judgment, the question before the Court now is not whether UnitedHealthcare’s coverage
determinations were, in fact, arbitrary and capricious, but rather whether Plaintiffs have alleged
facts sufficient to make out a plausible claim for relief. See Twombly, 550 U.S. at 570. They
have met that burden.
C.

Available Relief

Defendants make two additional arguments regarding the relief that Plaintiffs seek. First,
they argue that the Court should dismiss Plaintiffs’ request for an accounting and disgorgement
of profits because Plaintiffs have failed to allege facts showing they are entitled to such relief.
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[ECF No. 47 at 22–23; ECF No. 54 at 17–19]. Second, they argue that the Court should reject
Plaintiffs’ request for prospective injunctive relief because Plaintiffs have not alleged facts
showing that they have standing to seek prospective injunctive relief. [ECF No. 47 at 23–24;
ECF No. 54 at 19–21]. Plaintiffs maintain that the Court should not limit their potential relief at
this stage of the litigation and that ERISA explicitly gives plaintiffs a right to seek a court order
ensuring that a policy is applied correctly prospectively. [ECF No. 50 at 21–25].
With respect to accounting and disgorgement, as noted supra, Section III.A.1, on the
record before it, the Court cannot determine whether Plaintiffs’ remedy under § 1132(a)(1)(B)
would be adequate and, at this point in the proceedings, the Court is not prepared to foreclose the
availability of an accounting and/or disgorgement. See N.Y. State Psychiatric Ass’n, Inc., 798
F.3d 125, 134 (2d Cir. 2015) (reversing district court’s dismissal of § 1132(a)(3) claim and
noting that if plaintiff prevailed on remand, the district court should then determine whether
equitable relief is appropriate). Notwithstanding Defendants’ arguments to the contrary,
Plaintiffs have alleged more than just that their requests for pre-authorization for PBRT were
arbitrarily and capriciously denied. Rather, they have alleged that UnitedHealthcare has
developed and applied the PBRT Policy to broadly deny coverage for PBRT, even though it is
safe and effective, because it is more expensive than IMRT. [Am. Compl. ¶¶ 118–24]. If these
allegations are borne out, § 1132(a)(1)(B)’s remedy of repayment of benefits may turn out to be
inadequate, and it would therefore be premature to foreclose the possibility of equitable relief,
including an accounting and disgorgement, at this time. See Ehrman v. Standard Ins. Co., No.
06-cv-05454, 2007 WL 1288465, at *4–5 (N.D. Cal. May 2, 2007) (declining, at the motion to
dismiss stage, to foreclose the plaintiff from obtaining equitable relief, in addition to relief under

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§ 1132(a)(1)(B), where he alleged that the defendant adopted a “biased claim practice” “designed
to increase [its] financial profitability”).
Further, even if Plaintiffs can ultimately prove only that UnitedHealthcare breached its
fiduciary duty by impermissibly denying their benefits, it is possible that relief under
§ 1132(a)(1)(B) would still be insufficient. In other words, it is conceivable that even past due
benefits, prejudgment interest, and attorneys’ fees may not put Plaintiffs in the position they
would have been in but for UnitedHealthcare’s alleged misconduct. See Mullin v. Scottsdale
Healthcare Corp. Long Term Disability Plan, No. 15-cv-01547, 2016 WL 107838, at *4 (D.
Ariz. Jan. 11, 2016) (noting that “retroactive reinstatement of benefits does not account for [all]
financial harms,” that it was “conceivable that past due benefits, prejudgment interest, and
attorneys’ fees w[ould] be inadequate to put [plaintiff] in the position she would have been in but
for [defendant]’s alleged fiduciary misconduct,” and that “at the pleading stage . . . without
factual development, the [c]ourt c[ould not] determine whether [plaintiff]’s financial harm
exceeds the relief available to her under § 1132(a)(1)(B)”). Accordingly, at this juncture, the
Court will not foreclose the possibility of an accounting and/or disgorgement under § 1132(a)(3).
With respect to prospective injunctive relief, the Court is similarly unprepared to restrict
Plaintiffs’ potential relief at the motion to dismiss stage. If Plaintiffs prevail, the parties can
dispute the availability of prospective injunctive relief. At this point, however, the Court
declines to speculate as to whether a given plaintiff’s cancer will recur and/or whether he or she
will be a plan participant in the future. Further, given that this is a putative class action and the
proposed class includes “[a]ll persons . . . whose requests for PBRT will be denied in the future,”
[Am. Compl. ¶ 126], the availability of prospective injunctive relief may not depend solely on
Ms. Weissman, Mr. Cole, and Mr. Rizzuto. Finally, the recent Supreme Court case upon which

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Defendants rely, Thole v. U.S. Bank N.A., does not compel a different result. That case stands
for the proposition that plaintiffs lack standing where they “have no concrete stake in t[he]
lawsuit.” 140 S. Ct. 1615, 1619 (2020). Here, Plaintiffs have a concrete stake in this lawsuit,
and if they prevail, the Court can then decide whether the prospective injunction that Plaintiffs
seek is an available and appropriate remedy to redress their injury.
IV.

CONCLUSION
Accordingly, for the reasons set forth above, Defendants’ motion to dismiss, [ECF No.

46], is DENIED.
SO ORDERED.
March 8, 2021

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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