Heil v. Unicare Life & Health Insurance Company et al

Filing 20

MEMORANDUM AND ORDER re: 15 First MOTION for Discovery Order Compelling Discovery filed by Plaintiff Joseph J. Heil ; IT IS HEREBY ORDERED that plaintiff's motion to compel discovery [Doc. # 15 ] is granted. IT IS FURTHER ORDERED th at, not later than November 8, 2013, defendants shall answer Interrogatories 1 and 2 and produce documents responsive to Requests 1 and 2. Defendants must produce a privilege log for any responsive materials they withhold pursuant to a privilege.. Signed by District Judge Carol E. Jackson on 10/25/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH J. HEIL,
Plaintiff,
vs.
UNICARE LIFE & HEALTH INSURANCE
COMPANY and LORD AND TAYLOR
LONG TERM DISABILITY PLAN,
Defendants.

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Case No. 4:13-CV-401 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion to compel responses to
interrogatories and requests for production.

Defendants have filed a response in

opposition and the issues are fully briefed.
I.

Background1

The Lord and Taylor Long Term Disability Plan (the plan) is an employee welfare
benefit plan governed by the Employee Retirement Income Security Act (ERISA), 29
U.S.C. §§ 1001-1461. UniCare Life & Health Insurance Company (UniCare) is the plan
administrator. Plaintiff Joseph J. Heil applied for long-term disability benefits, effective
October 8, 2010, following spinal surgery to address lumbar stenosis and disc
herniation. Defendants awarded him benefits through January 24, 2011. Plaintiff,
contending that he has been continuously disabled, appealed the decision to
discontinue his benefits. On November 11, 1011, defendants denied plaintiff’s appeal.

1

The Court’s statement of background facts is based on plaintiff’s complaint.

Plaintiff filed this action against UniCare and the plan, alleging that the denial of
benefits was the product of procedural irregularities in the review process. Specifically,
he alleges that defendants’ reviewing physicians: (1) placed “ambush calls” to his
doctors without giving them an opportunity to review their medical files and then
ignored their subsequent clarifications; (2) ignored the results of an MRI that he claims
provided objective proof of his disability; and (3) intentionally misconstrued information
in the medical records. He also alleges that defendants failed to provide a vocational
analysis to the reviewing physicians, disregarded the Social Security Administration’s
determination that he is disabled, and made improper credibility determinations.
II.

Legal Standards

The general rule in ERISA cases is that a court’s review is limited to evidence
that was before the plan administrator. Jones v. ReliaStar Life Ins. Co., 615 F.3d 941,
945 (8th Cir. 2010). A disability claimant is responsible for ensuring that evidence
related to his or her medical condition is presented to the plan administrator and will
not be allowed to reopen the record to submit additional evidence that is more
favorable than the evidence considered by the administrator. Davidson v. Prudential
Ins. Co. of Am., 953 F.2d 1093, 1095 (8th Cir. 1992). See also Crosby v. Louisiana
Health Serv. & Indem. Co., 647 F.3d 258, 263 (5th Cir. 2011) (plan participants not
entitled to supplement court record with new evidence demonstrating that they are
entitled to benefits); Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1162
(10th Cir. 2010) (courts prohibited from considering materials outside administrative
record where the extra-record materials relate to a claimant’s eligibility for benefits).
Thus, plaintiffs in ERISA cases are not entitled to discovery directed to establishing
their eligibility for benefits.

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Discovery related to other areas may be appropriate, however. A “district court
may permit discovery and supplementation of the record” to establish that “a palpable
conflict of interest or serious procedural irregularity” caused a “serious breach” of the
plan’s fiduciary duty to a plan participant. Menz v. Procter & Gamble Health Care Plan,
520 F.3d 865, 870-71 (8th Cir. 2008).2

Courts also permit discovery of an

administrator’s dual role as decisionmaker and administrator. Whipple v. UNUM Group
Corp., No. 10-5075JLV, 2012 WL 589565, at *3 (D.S.D. Feb. 22, 2012) (citing cases
allowing discovery related to dual role conflict of interest); Howard v. Hartford Life &
Acc. Ins. Co., CIV. 11-MC-14, 2011 WL 3795155, at *2 (W.D. Ark. July 5, 2011)
(allowing limited discovery to explore conflict of interest); Winterbauer v. Life Ins. Co.
of N. Am., 4:07CV1026DDN, 2008 WL 4643942, at *6 (E.D. Mo. Oct. 20, 2008) (“[I]t
seems logical to allow some discovery” on conflict of interest). In addition, discovery
may be appropriate “[i]f it is necessary for adequate de novo review of the fiduciary’s
decision.” Donatelli v. Home Ins. Co., 992 F.2d 763, 765 (8th Cir. 1993).
Another source of law exists in the regulations issued by the Department of
Labor regarding the requirements for a “full and fair review” of an adverse benefits
determination. A claimant is entitled to “all documents, records, and other information

2

There has been no determination whether the de novo or abuse-of-discretion
standard of review will apply in this case. See Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989) (benefits decision examined under de novo standard unless
plan gives administrator discretion); Janssen v. Minneapolis Auto Dealers Ben. Fund,
477 F.3d 1109, 1113 (8th Cir. 2006) (deferential review conducted where
administrator given discretion). Plaintiff alleges in his complaint that the plan
documents do not give defendants discretion in interpreting the plan or determining
entitlement to benefits, in which case the de novo standard applies. Doc. #1, ¶12. In
their opposition to discovery, defendants state that the plan does give them discretion,
but they have not cited to any specific provision. Also unresolved by the parties’
pleadings is whether UniCare has a conflict of interest as defined by Metropolitan Life
Ins. Co. v. Glenn, 554 U.S. 105 (2008), arising from a dual role as decisionmaker and
plan administrator.

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relevant to the claimant’s claim for benefits.” 29 § C.F.R. 2560.503–1(h)(2)(iii). A
document is “relevant” to a claim for benefits if it:
(i) Was relied upon in making the benefit determination;
(ii) Was submitted, considered, or generated in the course of making the
benefit determination, without regard to whether such document, record,
or other information was relied upon in making the benefit determination;
(iii) Demonstrates compliance with the administrative processes and
safeguards required pursuant to paragraph (b)(5) of this section in
making the benefit determination; or
(iv) In the case of a group health plan or a plan providing disability
benefits, constitutes a statement of policy or guidance with respect to the
plan concerning the denied treatment option or benefit for the claimant’s
diagnosis, without regard to whether such advice or statement was relied
upon in making the benefit determination.
29 C.F.R. § 2560.503–1(m)(8).
III.

Discussion

Plaintiff served three interrogatories and three requests for production.
Defendants object to providing any information or documents outside the
administrative record. In addition, they assert that plaintiff’s requests are overly broad
and burdensome or seek material that is not relevant or is privileged. Defendants have
not provided a privilege log.
Defendants rely on Jones v. ReliaStar Life Ins. Co., 615 F.3d 941 (8th Cir. 2010),
to support their opposition to plaintiff’s motion to compel.

In Jones, the plan

administrator reduced the plaintiff’s disability benefits to offset benefits he received
from the Veteran’s Administration. In his ERISA action, the plaintiff sought discovery
relevant to the administrator’s conflict of interest.

The Eighth Circuit held that

discovery was unnecessary because the administrator conceded that it was both the
insurer and administrator. Id. at 945. With respect to the merits of the decision to
deny benefits, the Eighth Circuit held plaintiff’s challenge “involves an application of

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policy language to undisputed facts” and discovery was not required “to permit a fair
evaluation of ReliaStar’s decision.” Id.
District courts have distinguished Jones where the plaintiff’s claim involved
disputed facts, e.g., Whipple, 2012 WL 589565 at *3; the administrator did not follow
its own internal procedures in reaching its decision, e.g., Ennis v. Prudential Ins. Co.
of America, 4:12CV432SNLJ, 2103 WL 203293, at *2 (E.D. Mo. Jan. 17, 2013); or the
administrator failed to consult plaintiff’s physician after stating that it would do so, e.g.,
Bailey v. American Heritage Life Ins. Co., 1-11CV15 SNLJ, 2011 WL 5325563, at *2
(E.D. Mo. Nov. 3, 2011) (“serious procedural irregularity” resulted where plan
administrator led claimant to believe certain medical records were being considered
when they were not).
Interrogatory 1 asks defendants to identify the duties and functions of five
entities in connection with plaintiff’s claim.3 Defendants argue that they should not be
required to explain matters that appear in the administrative record.

Plaintiff is

entitled to know the sources of information defendants relied on to deny his claim and
defendants will be required to answer this interrogatory. If the required information
appears in the administrative record, defendants may cite to the relevant portions.
Similarly, Request 2 seeks written communications between defendants and several
identified individuals and entities4 relating to plaintiff’s “status or condition.” This
information is discoverable under Department of Labor regulations. Defendants object

3

The five entities are: UniCare Life & Health Insurance Company; Managing Care
Managing Claims; Behavioral Medical Interventions; Custom Disability Solutions; and
Lord and Taylor Long Term Disability Plan.
4

The individuals are reviewing physicians Jaime Foland, M.D., and Richard
Kaplan, M.D. The entities are those listed above plus Disability Claims Service,
Wellpoint, Inc., and the Atlanta Disability Service Center or DRMS.

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that the request is overbroad and burdensome because it is unlimited in time. The
three-year period since plaintiff first applied for benefits is not unduly long.
Interrogatory 2 and Request 1 are directed to ambiguities or gaps in the
administrative record.5 Where defendants insist that the Court’s review is limited to
the administrative record, it is appropriate to require them to make sure that the
record is comprehensible to both the plaintiff and the reviewing court. Defendants will
be directed to provide responses to Interrogatory 2 and Request 1.
Request 3 seeks “all audit records for the audit or other procedures referred to
on page 233” of the administrative record. Defendants assert that the requested
records are not relevant. The Court lacks sufficient information to determine what the
“audit” consists of or whether it is relevant to plaintiff’s claims. This request will be
denied without prejudice.
Interrogatory 3 seeks information regarding the rates at which the reviewing
physicians have recommended approving or denying claims. Plaintiff does not allege
that the physicians have a record of wrongfully denying meritorious claims and the
Court concludes that the requested information is not relevant.
Defendants assert that some of the documents plaintiff seeks are privileged.
When a party withholds materials as privileged, it must “expressly make the claim,”
and “describe the nature” of the withheld materials “in a manner that, without
revealing information itself privileged or protected, will enable other parties to assess
the claim.” Rule 26(b)(5)(A).

5

Interrogatory 2 asks defendants to explain the following statement in the
administrative record: “The Claim . . . has not been sent to QA due to the Random
Percentage 10% at 24-Mar-2011.” Request for Production 1 seeks production of five
blank or redacted pages.

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A party must notify other parties if it is withholding materials otherwise
subject to disclosure under the rule or pursuant to a discovery request
because it is asserting a claim of privilege or work-product protection. To
withhold materials without such notice is contrary to the rule, subjects the
party to sanctions under Rule 37(b)(2), and may be viewed as a waiver
of the privilege or protection.
Rule 26(b) advisory committee note (1993 amend.).
Defendants argue that they are not required to produce a privilege log for
material they redacted from the administrative record because the material consists
of “post-complaint information” that is irrelevant to plaintiff’s claim. The date on which
the redacted material was created has no bearing on the obligation to comply with Rule
26(b)(5)(A).

Defendants will be required to produce the requested materials or

produce a satisfactory privilege log.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to compel discovery [Doc. #15]
is granted.
IT IS FURTHER ORDERED that, not later than November 8, 2013,
defendants shall answer Interrogatories 1 and 2 and produce documents responsive
to Requests 1 and 2. Defendants must produce a privilege log for any responsive
materials they withhold pursuant to a privilege.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 25th day of October, 2013.

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