Zalkin v. Coventry Health Care of Nebraska, Inc.

Filing 28

ORDER granting 25 plaintiff's Motion for Leave to Conduct Discovery Outside the Administrative Record. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA S T E V E N ZALKIN, P l a i n t i f f, vs. C O V E N T R Y HEALTH CARE OF N E B R A S K A , INC., D efe n d a n t. ) ) ) ) ) ) ) ) ) )

8 :0 9 C V 9 6 MEMORANDUM A N D ORDER

T h is is an action under the Employee Retirement Income Security Act, 29 U.S.C. § 1 0 0 1 , et seq. ("ERISA") and is now before the magistrate judge on the plaintiff's Motion for L e a v e to Conduct Discovery Outside the Administrative Record (Filing No. 25). Having c o n s id e re d the defendant's ("Coventry's") response (Filing No. 27), together with Coventry's " a d m in is tra tiv e record" (Filing No. 23), I find that the motion should be granted. I. BACKGROUND T h e court has reviewed the "administrative record" 1 filed by Coventry in order to d e te rm in e whether additional discovery is warranted. In August 2005, the plaintiff, Steven Zalkin, was diagnosed with the multicentric form o f Castleman Disease. Multicentric Castleman Disease is a rare aggressive multisymptom

Coventry was ordered to file the administrative record early in the case so that the appropriate standard of review and scope of discovery­if any­could be determined without delay. In response, Coventry filed 583 pages of unauthenticated, unindexed documents (Filing No. 23), some of which were redacted (e.g., Filing No. 23 at p. 27/99, COV000027).

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d is o rd e r that can result in death due to infection and also transformation into non-Hodgkin's lym p h o m a . (Filing No. 23-4 at p. 83/112, COVZ000357) 2 . The disease is not officially d e s ig n a te d as a cancer; however, it resembles lymphoma. (Filing No. 23-3 at p. 104/107, C O V Z 0 0 0 2 7 1 ; Filing No. 23-4 at p. 75/112, COVZ000349). There is no standard treatment f o r Castleman Disease. (Filing No. 23-4 at p. 83/112, COVZ000357). By April 1, 2008, plaintiff had received two courses of prednisone, two courses of ritu x im a b , and one course of high dose dexamethasone. (Filing No. 23 at p. 63/99,

C O V Z 0 0 0 0 6 7 ). He had suffered a severe reaction in his lower legs, possible due to the C a stle m a n Disease, but which was resolved with hydroxyzine. Plaintiff was developing f a tig u e , drenching night sweats, and persistent itching in his legs; he had not yet suffered f ro m infections or bleeding, and had no new adenopathy. (Id.) Each course of treatment c a u se d a partial remission, but each time the plaintiff's symptoms recurred. On April 22, 2 0 0 8 , plaintiff's doctors recommended that he pursue a course of CVP chemotherapy plus ritu x im a b . (Filing No. 23 at p. 64/99, COVZ000068). Coventry, the plaintiff's health insurance carrier, states that it issued and administered a fully-funded HMO point of service open access plan, sponsored by the plaintiff's business, A la m a r Corporation. (Filing No. 20, Answer at ¶ 2). By letter dated May 12, 2008, Coventry approved the plaintiff's request for coverage o f an Autologous Stem Cell transplant evaluation at the UNMC. (Filing No. 23 at p. 52/99,
Citations are to the CM/ECF docket number and to the Bates-stamped numbers appearing on the documents.
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C O V Z 0 0 0 0 5 6 ). The letter noted that approval of coverage for the evaluation did not ensure a p p ro v a l of coverage of the transplant itself. R e q u e s t for Preauthorization O n May 19, 2008, plaintiff sought preauthorization from Coventry to proceed with " h ig h intensity chemotherapy, followed by an autologous peripheral stem cell transplant." (F ilin g No. 23 at p. 58/99, COVZ000062). Coventry denied the request for preauthorization o n May 23, 2008, advising the plaintiff that the proposed treatment was "experimental and in v e stig a tio n a l" and coverage was excluded under sections 7.1.1, 7.1.2, and 7.2.59 of the in s u ra n c e policy. (Filing No. 23 at p. 97-98/99, COVZ000101-102; Policy, Filing No. 23-6 a t pp. 49 & 54/90; COVZ000546 & 551) C o v e n try's initial decision was based on a case report apparently procured through a p e e r review analysis organization or business called "mcmc" and prepared by Howard J. F in g e rt, MD. Dr. Fingert's brief report, printed on the letterhead of "mcmc" notes that the U n iv e rs ity of Nebraska Medical Center ("UNMC") was "one of the most experienced tra n sp la n t centers caring for patients with lymphoproliferative disorders, and some promising e x p e rie n c e has been published using auto transplant for Castleman's disease from this same ce n ter," and "[a]necdotal experience has been published using transplant in this diagnosis[.]" C itin g two references, the unsigned report concludes that the experience was "not sufficient to conclude that this approach can provide reliable and durable clinical utility." (Filing No. 2 3 at pp. 93-94/99, COVZ000097-98).

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F ir st Level Appeal O n May 28, 2008, plaintiff's attending physician, Dr. James Armitage, appealed the tra n sp la n t denial and provided Coventry with peer review literature from the UNMC and the M a yo Clinic demonstrating that the proposed transplant procedure had value in the treatment o f Castleman Disease. (Filing No. 23-2 at pp. 5-30/64, COVZ000107-133). Dr. Armitage a d v ise d that an auto stem cell transplant is, at the present time, a treatment most likely to c a u se a durable remission of Castleman Disease, and there is no standard of care treatment f o r the disease. Plaintiff's first-level appeal was denied on May 30, 2008, based on additional medical o p in io n s, again procured through "mcmc." None of the "mcmc" consultants conferred with th e plaintiff's attending physician. Coventry presented the following questions to the c o n s u ltin g physicians: 1 . Is the requested rare disease autologous stem e x p e rim e n ta l/in v e stig a tio n a l per plan language? cell transplant

2 . If not considered experimental/investigational, is it medically necessary? S ig m u n d Kahn, M.D.­ Dr. Kahn stated that multicentric Castleman Disease is a rare c o n d i tio n . His"MEDLINE" search returned 523 citations; however, only "several" case re p o rts dealt with stem cell transplantation (SCT). He stated there was no consensus that S C T was safe or effective "in a man with these findings." Citing a web page and a 2005 a rtic le , Dr. Kahn noted that "newer therapy with RTX, IFN, thalidomide and cladarabine ... m a y yield adequate control." He consulted the web page www.clinicaltrials.gov, found no

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tria ls on an international basis regarding the use of SCT to prevent non-Hodgkin's lymphoma, a n d thus concluded that the plaintiff's proposed use of SCT was experimental/investigational a n d was not necessary. J a m e s Wortman, M.D.­ Citing 18 references, Dr. Wortman opined that a stem cell tran sp lant for Castleman Disease would be considered experimental/investigational, as there w e re only a small number of anecdotal reports of success in the literature due to the rarity of th e disease. The successes discussed in the literature were "mainly in the neurologic d istu rba n ce s associated with this disease." The plaintiff's symptoms, however, were

g e n e ra liz e d . While SCT was a reasonable choice for this patient, there were "a number of o th e r experimental/ investigational alternatives available for this disease." (Filing No. 23-4 a t p. 75/112, COVZ000349). Dr. Wortman went on to discuss five experimental or

in v e stig a tio n a l alternatives. His discussion concludes: [Author] Dispenziera reviews 16 patients with autologous stem cell transplants a n d out of those, 14 had improvement or stabilizations of their neurologic a b n o rm a litie s. This current patient has no neurologic complaints and m a n if e sts his disease in a much different way. Although a stem cell transplant is a reasonable option in a patient such as this, with a number of anecdotal s u c c es s e s, there are other alternative therapeutic treatments programs along w it h observation alone that have met with some success. Bone marrow tra n sp lan tatio n is one of these, but due to a limited number of studies would s till be considered experimental/investigational and therefore not medically n e c es s a ry based on policy language. (F ilin g No. 23-4 at p. 76/112, COVZ000350). K e n n e th Pienta, M.D.­ Citing three resources, Dr. Pienta advised that "optimal s ta n d a rd therapies" have not been established for Castleman Disease, a rare heterogeneous -5-

g ro u p of diseases involving proliferation of lymphoid cells. "Currently, most patients receive tre a tm e n ts derived from past experience with non-Hodgkin lymphoma." The role of bone m a rro w transplant and more recently developed courses of treatment remain undefined for th is disease. Thus, he concluded, the requested autologous stem cell transplant was

e x p e rim e n ta l/in v e s tig a tio n a l per plan language. Second Level Appeal D r. Armitage filed a second level appeal on June 17, 2008, on plaintiff's behalf. Dr. A rm ita g e requested the opportunity to speak before the appeal committee and asked that an e x p e rt in lymphoma and transplantation attend the hearing. (Filing No. 23-3 at p. 5/107, C O V Z 0 0 0 1 7 2 ). Plaintiff was promptly advised that the Corporate Grievance Committee w o u ld review the second level appeal on June 23, 2008 at 10:00 AM. Apparently, the appeal was held by conference call with Dr. Armitage, Coventry's C o rp o ra te Grievance Committee, and the plaintiff. The appeal information was reportedly re v ie w e d by Lee P. Hartner, MD, Board Certified Medicine, Hematology and Oncology; D e b ra Esser, MD, VP Medical Affairs, Board Certified Family Practice; Pat Schaefer, RN, D ire c to r Health Services. (Filing No. 23-3 at p. 26/107, COVBZ000193). There is no in d ic a tio n that any expert in lymphoma or transplantation attended the hearing or was c o n s u lte d . No transcript of the hearing was provided in Coventry's "administrative record."

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D o c u m e n ts generated by Coventry indicate that its denial of plaintiff's second level a p p e al was based mainly on Dr. Hartner's opinion, which Coventry procured through the " m c m c " organization. (Filing No. 23-3 at pp. 20-21/107, COVZ000187-88). Dr. Hartner's s ig n e d opinion (Filing No. 23-3 at pp. 17-19/107; COVZ000184-186) is similar in content a n d format to the other opinions procured by Coventry through "mcmc." He did provide a d d it io n a l information that multicentric Castleman disease is thought to be related to "P o lyn e u ro p a th y, organomegaly, endocrinopathy, monoclonal gammopathy, and skin c h a n g es (POEMS) syndrome." While emerging data supported the use of autologous tra n sp la n ta tio n in the treatment of POEMS syndrome, the use of this treatment had not been "w ell studied" in Castleman disease, and the literature consisted only of case reports. There w as no standard treatment for Castleman disease, and no controlled trials existed to support th e use of any recommended therapies. Dr. Hartner opined that it was "certainly reasonable to consider the use of autologous stem cell transplantation in this patient with multicentric C a stle m a n 's disease who has failed prior therapy." The treatment, however, was considered e x p e rim e n ta l/in v e stig a tio n a l, based on the language of the Coventry insurance policy, which m a d e "no exception for the rarity of certain disorders, which precludes the determination of a n y consensus regarding the safety and efficacy of particular treatments." (Filing No. 23-3 at p. 18/107, COVZ000185).

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C o m p la in t Filed with the Nebraska Department of Insurance N o tin g that his second level appeal was denied within 24 hours of the conference call, p la in tif f filed a complaint against Coventry with the State of Nebraska Department of Insu ran ce ("State"). Plaintiff advised that he was told Coventry uses an independent firm th a t would send his information to experts in the field to determine his appeal; however, the in d iv i d u a ls who reviewed his appeal were not experts in the treatment of Castleman disease a n d did not have any scientific data in relationship to the treatments and successes of treating C a s tle m a n disease. (Filing No. 23-3 at p. 26/107, COVZ000193). In response to the State's inquiry, Coventry provided numerous documents, together w ith the explanation that It is Coventry's policy with respect to any request for any transplant, if the p a r t i c ip a tin g specialist determines the member is a candidate for tra n sp la n ta tio n is to authorize an evaluation at an approved facility. The e v a lu a tio n is to determine if the individual is an appropriate candidate for the s p e c if ic transplant in question and if the transplant is deemed to be a covered b e n e fit in accordance with the plan contract (e.g. not deemed to be e x p e rim e n tal or investigational, ect. [sic]). Additionally, the evaluation will b e used by the participating specialist to determine if another course of tre a tm e n t may be more beneficial for that individual patient under a given set o f circumstances. The evaluation does not approve coverage for the transplant. **** C a stle m a n 's Disease is a rare condition. However, it is not the case that any tre a tm e n t for a rare condition will de facto be considered investigational or e x p e rim e n ta l. Any request Coventry receives for treatment for a rare condition o r any condition from that matter is, reviewed by a medical director and c o m p a re d to medical necessity criteria. If medical necessity criteria is u n a v a ila b le , then the treatment request would be reviewed using evidence

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b ase d medicine, peer reviewed literature and/or same specialty external expert re v ie w to make a determination. (F ilin g No. 23-3 at pp. 29-30/107, COVZ000196& 197). In response, the State investigator noted that all of Coventry's consulting physicians h a d agreed there was no standard of care for the plaintiff's condition, and at least two of the c o n su lta n ts acknowledged the stem cell transplant as a reasonable option. One physician re f e re n c e d "other experimental/investigational alternatives available," suggesting that any re a so n a b le treatment options would be similarly denied. Another physician specifically a ttrib u te d the lack of supporting literature to the rarity of the disorder, and the insurance p o lic y made no exception for the rarity of certain disorders. The State investigator concluded th a t the case file suggested a disparate impact of the policy language resulting in the tre a tm e n t of rare conditions being held de facto experimental by Coventry. Coventry's August 1, 2008 response repeated its original statement. Coventry again s ta te d that the Coventry policy does provide access to a reasonable level of covered treatment f o r insureds with rare conditions, citing an instance where it decided to allow coverage for th e treatment of Amyloidosis. (Filing No. 23-4 at pp. 3-6/112, COVZ000277-280). T h e administrative complaint is not discussed in the plaintiff's brief, and the records su p p lied by Coventry appear to be silent as to the State's resolution of the matter.

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L E G A L ANALYSIS A denial of benefits challenged under ERISA is, by default, reviewed de novo s ta n d a rd unless the benefit plan 3 gives the administrator discretionary authority to determine e lig ib ility for benefits or to construe the terms of the plan. See Firestone Tire & Rubber Co. v . Bruch, 489 U.S. 101, 115 (1989). If an ERISA plan gives its administrator or trustees d is c re tio n a ry authority to determine eligibility for benefits, the court reviews such a decision f o r an abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. at 115; a c c o r d Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348 (2008). The plan a d m in is tra to r bears the burden of showing the plan gives it discretionary authority. Boldon v . Humana Ins. Co., 466 F. Supp. 2d 1199, 1208 (D. Ariz. 2006). The issue presented in this motion is whether the plaintiff may conduct discovery o u ts id e the administrative record produced by Coventry (Filing No. 23). Following the S u p r e m e Court's decision in Metropolitan Life Ins. Co. v. Glenn (which did not specifically

Typically, an ERISA plan is embodied in more than one document and the "plan documents" include both the insurance policy and the accompanying Summary Plan Description. See Jobe v. Medical Life Ins. Co., No. 08-3505 (8th Cir. March 19, 2010); Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 476 F.3d 626, 629 (8th Cir. 2007); 29 U.S.C. § 1022(a)(1). "To fall within the court's deferential review, the plan documents must contain explicit language conferring discretionary authority." Winterbauer v. Life Ins. Co. of N. Am., 2008 WL 4643942, Case No. 4:07CV1026 (E.D. Mo., Oct. 20, 2008) (citing McKeehan v. Cigna Life Ins. Co., 344 F.3d 789, 793 (8th Cir. 2003)). Coventry has not clearly identified all of the applicable "plan documents," and the court was unable to definitively locate any summary plan description in Coventry's "administrative record." The insurer, however, is forbidden to play the SPD as a "trump card." See Jobe v. Medical Life Ins. Co., No. 08-3505, slip op. at 11 (8th Cir. March 19, 2010). The decision in Jobe illustrates the importance of identifying and considering all the plan documents when determining the applicable standard of review; a conflict among plan documents on this point could result in the plan administrator's decision being subject to de novo review and given no deference by the court.

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a d d re ss the scope of discovery appropriate in cases arising under ERISA), the Eighth Circuit h a s observed: T h e re is no doubt that Glenn changed ERISA review in some ways. First, th e Supreme Court determined specifically that when the entity that a d m i n is te rs the plan "both determines whether an employee is eligible for b e n e f its and pays benefits out of its own pocket" a conflict of interest exists. G le n n , 128 S.Ct. at 2346. Prior to Glenn, this Court held the opposite. See, e .g ., Chronister I, 442 F.3d at 655 ("[I]t is wrong to assume a financial conflict o f interest from the fact that a plan administrator is also the insurer.") (quoting M c G a r r a h v. Hartford Life Ins. Co., 234 F.3d 1026, 1030 (8th Cir. 2000)). S im ila r ly, under this Court's pre-Glenn precedent, a financial conflict of in ter e st would not trigger less-deferential review unless the claimant could s h o w that the conflict was causally connected to the specific decision at issue. S e e Woo v. Deluxe Corp., 144 F.3d 1157, 1160 (8th Cir. 1998); McGarrah, 2 3 4 F.3d at 1030. Glenn makes clear that, while a causal connection might be im p o rta n t in determining the appropriate level of scrutiny for a plan a d m in is tra to r's decisionmaking, such a connection is not required. Glenn, 128 S .C t. at 2351 ("The conflict of interest ... should prove more important ... w h e re circumstances suggest a higher likelihood that it affected the benefits d ec isio n ...." ). Under Glenn, courts must analyze the facts of the case at issue, takin g into consideration not only the conflict of interest, but also other factors th a t might bear on whether the administrator abused its discretion. Id. C h r o n is te r v. Unum Life Ins. Co., 563 F.3d 773, 775 (8th Cir. 2009). "Although the Glenn Court ruled that a Plan Administrator's conflict of interest is a f a cto r that can be explored in an ERISA case, it did not discuss how the Plaintiff went about e s ta b l i s h i n g such a conflict." Almeida v. Hartford Life & Accident Ins. Co., 2010 WL 7 4 3 5 2 0 at *4, Case No. 09-cv-1556 (D. Colo., March 2, 2010). In Chronister, the Eighth C ircu it noted that it was not faced with determining whether Glenn changes the discovery lim ita tio n s in ERISA cases. Chronister, 563 F.3d at 775 n.2. "Simply put, Glenn's effect on

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th e discovery rules for ERISA cases remains unclear." Winterbauer, 2008 WL 4643942 at *5. It is clear that, after Glenn, a reviewing court may no longer disregard an ERISA p la n 's structural conflicts of interest without further analysis. See Denmark v. Liberty Life A s s u r a n c e Co. of Boston, 566 F.3d 1, 9 (1st Cir. 2009). A structural conflict of interest o c c u r s when, as here, the plan administrator both determines eligibility and pays the claims. T h e conflict of interest must be considered as a factor when conducting a deferential review o f the plan administrator's decision to deny benefits. "Evidence of a conflict of interest may a p p e ar on the face of the Plan, by evidence of improper incentives, or through proof of a p a t te r n or practice of unreasonably denying meritorious claims." Almeida v. Hartford Life & Accident Ins. Co., -- F. Supp. 2d ­--, 2010 WL 743520 at *2, Case No. 09-cv-1556 (D. C o lo ., March 2, 2010) (citing Glenn, 128 S. Ct. at 2354 (Roberts, C.J., concurring)). The s ig n if ic a n c e of the factor will depend on the circumstances of the particular case. Glenn, 128 S . Ct. at 2346. The Glenn decision was not intended to "bring about near universal review by judges d e novo­i.e., without deference­of the lion's share of ERISA plan claims denials." Glenn, 1 2 8 S. Ct. at 2350. However, even in a case which is subject to deferential review, the court m u s t analyze the facts of the case at issue, considering all the factors that might bear on w h e th e r the Plan administrator abused its discretion. See Chronister, 563 F.3d at 775. In this instance, the plaintiff seeks leave to conduct discovery regarding:

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1 . T h e conflict of Coventry (Plan Administrator) because of direct f in a n c ia l interest to Coventry when claims are denied; 2 . T h e background, training, and credentials of the reviewing parties at C o v e n t ry making the initial denial of benefits; 3 . T h e conflict of interest of the reviewing parties at Coventry making the in i tia l denial of benefits; 4 . T h e conflict of those so-called experts employed by Coventry in the a p p e a ls process, including how they were determined to be most k n o w le d g e ab le about the issues in question, how many previous times they h a v e been retained by Coventry, what direct financial interest they potentially h a v e because of remuneration paid and because of the prospect of additional r e te n tio n ; 5 . W h e th e r Coventry had the most up to date scientific studies and tre a tis e s in their possession or if they stopped investigating when they found th o s e they believed supportive of Coventry's position; 6 . H o w many other similar cases have been determined and to what result; 7 . W h y autologous stem cell treatment has been accepted as appropriate tre a tm e n t repeatedly by Coventry but it made a distinction for treatment in this c a s e , and whether such distinction was rational[.] F ilin g No. 26, Plaintiff's brief at pp. 9-10. In this case, the plaintiff sought insurance coverage for treatment of a very rare c o n d itio n . Coventry's "administrative record" demonstrates that it solicited medical opinions thro u g h an organization ("mcmc"), the independence and qualifications of which are n o w h e re disclosed. The qualifications of the doctors from whom Coventry and/or "mcmc" p roc u red opinions are nowhere disclosed. The medical opinions upon which Coventry a p p a re n tly relies appear on the letterhead of "mcmc," and all contain a boilerplate disclaimer

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to the effect that the physician had no conflicts of interest. Only one of the opinions bears a signature. The terms of Coventry's arrangement with "mcmc" for the procurement of m e d ic a l opinions remain unknown. It is unknown how or whether Coventry or the "mcmc" o r g a n iz a tio n screens physicians for relevant levels of expertise or conflicts of interest, f in a n c ia l or otherwise. "[T]he extent of any alleged conflict of interest could be shown by how Defendant in s tru c ts third party consultants, doctors and reviewers and/or whether Defendant provides in c e n tiv e s to them." Almeida, 2010 WL 743520 at *3 (citing Glenn, 128 S. Ct. at 2354 (R o b e rts , C.J., concurring), in turn, citing Armstrong v. Aetna Life Ins. Co., 128 F.3d 1263, 1 2 6 5 (8th Cir.1997)). In Almeida, the court allowed the plaintiff to conduct discovery on " a n y financial incentives given to employees involved in denying her claim." Id. Citing G le n n , 128 S. Ct. at 2351, the court also ordered the insurance company to disclose its claims m a n u a ls , training and claims guidelines, and other statistical data relevant to the issue of w h e th e r it had a history of biased claims administration. In McGahey v. Harvard Univ. Flexible Benefits Plan, 260F.R.D. 10, 12 (D. Mass. 2 0 0 9 ), the court granted the plaintiff's motion pursuant to Fed. R. Civ. P. 56(f) to conduct d isc o v e ry directed to the issue of whether the insurance company's experts "were in fact truly in d e p e n d e n t" : T h e court is persuaded that McGahey is entitled to some additional discovery re la te d to the opinions of three experts who performed independent medical e x a m in a tio n s (IME) for Harvard.... These three experts stand apart from the o th e r fourteen experts and treating physicians who opined on McGahey's -14-

d is a b ility because of their diagnosis of McGahey with "symptom m a g n if ic a tio n ," or, less politely, faking. At least on the surface, this opinion is difficult to reconcile with the diagnoses of McGahey's treating physicians w h o are sufficiently convinced of her complaints of pain to prescribe powerful (a n d potentially addictive) painkillers like OxyContin and Percocet. 2 6 0 F.R.D. at 12. Relying solely on the language of the Group Policy (Filing No. 23-4), Coventry m a in t a in s that it has discretionary authority in determining eligibility for benefits because " [t]h e Group Policy expressly grants Coventry the 'sole and absolute discretion' to determine w h e th e r procedures and treatments are experimental or investigational.... Therefore, the a b u se of discretion standard applies, and matters outside the Administrative Record are not s u b j e c t to discovery." As discussed in footnote 3, supra, Coventry has not identified all of the applicable E R IS A plan documents, yet demands a deferential standard of review. The "administrative re c o rd " upon which it relies is neither organized nor authenticated. Coventry's redactions of its " a d m in is tra tiv e record" have not been authorized or explained. As required by the Eighth Circuit's decision in Chronister, 563 F.3d at 775, this court h a s considered the facts of the case at issue, the nature of the claim, and Coventry's structural c o n f li c t of interest. Coventry has insisted that the course of treatment advocated by the p la in tif f 's treating physicians is "experimental" simply because the plaintiff suffers from a ra re condition for which there is no standard of care. In arguing that the proposed treatment w a s not "necessary," Coventry's consulting experts suggested alternative treatments which

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w o u l d also be"experimental" under whatever guidelines they used to interpret Coventry's p o lic y language. Coventry's own consulting experts appear to agree that it would be re a so n a b le to pursue the course of treatment proposed by the plaintiff's treating physician. C o v e n try acknowledges, as it must, that it has a structural conflict of interest. Under G le n n , "not all conflicts are created equal." Hogan-Cross v. Metropolitan Life Ins. Co., 568 F . Supp. 2d 410 (S.D.N.Y. 2008). Their significance in any given case depends upon all of the circumstances, in c lu d in g those suggesting a higher or lower likelihood that the conflict a f f e c te d the decision. Information bearing on the manner in which a conflicted p lan administrator compensates outside consultants could be highly pertinent. M a in te n a n ce of compensation arrangements that create economic incentives f o r consultants to recommend denial or termination of benefits would have a m a ter ial bearing on the likelihood that the administrator's conflict affects its b e n e f it determinations. Id . The court finds that the papers supplied by Coventry do not satisfactorily address these c o n c e rn s and that the plaintiff should be allowed to conduct discovery relating to Coventry's s tru c tu ra l conflicts of interest. The topics proposed by the plaintiff are appropriate,

c o n sid e rin g the rarity of the plaintiff's medical disorder and the other circumstances of this in c id e n t. ORDER I T IS ORDERED that plaintiff's Motion for Leave to Conduct Discovery Outside the A d m in is tra tiv e Record (Filing No. 25) is granted, as follows:

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1 . T h e plaintiff may serve discovery requests to obtain information concerning the to p ic s proposed in the plaintiff's motion, consistent with the numerical limits imposed by the a p p lic a b le Federal Rules of Civil Procedure. 2. If any document is withheld from production or disclosure on the grounds of p riv ile g e or work product, the producing party shall disclose the following information about e a ch such document withheld: a description of the document withheld with as much sp ec ificity as is practicable without disclosing its contents, including (a) the general nature o f the document; (b) the identity and position of its author; (c) the date it was written; (d) the iden tity and position of its addressee; (e) the identities and positions of all persons who were g iv e n or have received copies of it and the dates copies were received by them; (f) the d o c u m e n t's present location and the identity and position of its custodian; and (g) the specific re a so n or reasons why it has been withheld from production or disclosure. A party may object to this order by filing an "Objection to Magistrate Judge's Order" w ith in 14 days after being served with the order. The objecting party must comply with all re q u ire m e n ts of NECivR 72.2. D A T E D March 19, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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