Nelson v. Blue Cross and Blue Shield of Nebraska

Filing 95

MEMORANDUM AND ORDER that plaintiff's motions to strike (Filing No. 56 and Filing No. 86 ) are denied. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LYNN R. NELSON,
Plaintiff,

8:14CV228

vs.
MEMORANDUM AND ORDER
BLUE CROSS AND BLUE SHIELD OF
NEBRASKA; CONAGRA FOODS, Inc. as
Sponsor of the ConAgra Foods, Inc.
Welfare Benefit Wrap Plan; and
CONAGRA FOODS EMPLOYEE
BENEFITS ADMINISTRATIVE
COMMITTEE, as Administrator of the
ConAgra Foods, Inc. Welfare Benefit Wrap
Plan;
Defendants.

This matter is before the Court on the plaintiff's motions to strike, Filing No. 56
and Filing No. 86. This is an action for judicial review of an administrative determination
denying benefits under the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1001, et seq.
The plaintiff moves to strike certain evidence in the administrative record,
particularly an explanation of benefits ("EOB") dated May 31, 2012, and a denial
notification dated April 20, 2012, as well as documents and affidavits filed in support of
the defendants' motions for summary judgment.1 She contends the documents lack
foundation and authentication and argues that the defendants are judicially estopped
from submitting the evidence by their earlier representation to the Court that the Court's
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In particular, she seeks an order striking the following documents filed by the defendants in
support of their Motions for Summary Judgment: (1) the Affidavit of Amy McCarthy dated June 4, 2015,
Filing No. 74-2 and Filing No. 76-2; (2) the Supplemental Affidavit of Andrew Sloan dated June 4, 2015,
Filing No. 74-1; (3) the Supplemental Affidavit of Ron Frey dated June 4, 2015, Filing No. 76-3; (4)
Defendant Blue Cross's Statement of Additional facts, Filing No. 73, Brief at 1-5; and (5) ConAgra's
Statement of Undisputed Additional Facts, Filing No. 75, Brief at 2-9.

review should be based only on the administrative record. Further, she seeks to strike
records of telephone communications for lack of foundation and authentication and as
hearsay and double hearsay.

She also contends the affidavit of Ron Frey lacks

foundation, is irrelevant, constitutes hearsay, is lacking in personal knowledge, and
violates the best evidence rule. Defendants Blue Cross and Blue Shield of Nebraska
(hereinafter, "Blue Cross") and ConAgra Foods, Inc., and ConAgra Foods Employee
Benefits Administrative Committee (hereinafter, collectively, "ConAgra") oppose the
motion to strike, arguing that the additional evidence relates to the notice/exhaustion
issue, but further contends the court's review of the merits should be limited to the
administrative record.
The record shows that, pursuant to the parties' respective positions at the Fed. R.
Civ. P. 26(f) meeting, the magistrate judge allowed limited discovery on the issue of
notice or lack of notice to Nelson of the denial of her claim for medical benefits. See
Filing No. 88-1, Index of Evidence, Ex. 1, correspondence from Nicholas K. Rudman to
Jason M. Bruno dated May 4, 2015 (expressing recollection that the magistrate judge
stated at the parties’ planning conference on February 2, 2015, that discovery was
allowed on the issue of notice); Filing No. 36, Rule 26(f) Report at 17-19 (stating that
plaintiff requested discovery outside the administrative record). In the parties’ Rule 26(f)
Report, the plaintiff argued that she required discovery outside of the administrative
record to prove her case. See Filing No. 36, Rule 26(f) Report. The Court permitted
additional discovery. See Filing No. 89, Order on motion to determine sufficiency of
answers to requests for admission.

2

Under ERISA, the Court's review is generally limited to the administrative record
and the restriction is mandatory under an abuse of discretion standard. Brown v. Seitz
Foods, Inc., Disability Ben. Plan, 140 F.3d 1198, 1200 (8th Cir. 1998); see also Ferrari
v. Teachers Ins. and Annuity Ass'n, 278 F.3d 801, 807 (8th Cir. 2002). Under de novo
review, considering outside evidence is discouraged in order to “ensure expeditious
judicial review of ERISA benefit decisions and to keep district courts from becoming
substitute plan administrators.” Seitz Foods, 140 F.3d at 1200. However, limited
discovery is allowed to determine the appropriate standard of review. Farley v.
Arkansas Blue Cross and Blue Shield, 147 F.3d 774, 776 n. 4 (8th Cir. 1998). Also, the
prohibition does not extend to other questions which may arise in an ERISA action,
such as (1) the completeness of the administrative record; (2) the plan administrator's
compliance with ERISA's procedural regulations; and (3) “the existence and extent of a
conflict of interest created by a plan administrator's dual role in making benefits
determinations and funding the plan.” Crosby v. Louisiana Health Serv. and Indem.
Co., 647 F.3d 258, 263 (5th Cir. 2011); see also Murphy v. Deloitte & Touche Grp. Ins.
Plan, 619 F.3d 1151, 1161-62 (10th Cir. 2010) (explicitly recognizing exceptions to the
general rule barring consideration of extrinsic evidence on abuse of discretion review
and permitting consideration of extrinsic evidence regarding the extent and impact of a
plan administrator's conflict of interest); Burke v. Pitney Bowes Inc. Long–Term
Disability Plan, 544 F.3d 1016, 1027–28 (9th Cir. 2008) (holding that courts may
consider evidence from outside of the administrative record in at least three situations:
(1) to determine whether and to what extent an administrator's conflict of interest
adversely affected the administrative decision-making process, (2) when “procedural
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irregularities” undermined the development of a full administrative record, and (3) when
a plan's representations caused a participant to incorrectly but reasonably believe a
document was part of the administrative record); and Lafleur v. Louisiana Health Serv.
& Indem. Co., 563 F.3d 148, 158 n. 22 (5th Cir. 2009) (allowing consideration of
extrinsic evidence in cases where procedural irregularities inhibited the development of
an adequate record); and Helton v. AT & T Inc., 709 F.3d 343, 356 (4th Cir. 2013)
(permitting consideration of evidence from outside of the administrative record when
that evidence was known to the administrator at the time the administrator rendered its
benefits determination).
The Court finds it appropriate to consider the filings in connection with the
pending motions for summary judgment and the related issues of notice, exhaustion
and standard of review. The documents will be considered only to the extent they are
relevant to the issues.

Accordingly, the Court finds the plaintiff's motions to strike

should be denied.
IT IS ORDERED that plaintiff’s motions to strike (Filing No. 56 and Filing No. 86)
are denied.
Dated this 13th day of October, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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