Glibowski v. United States Office of Personnel Management
MEMORANDUM OPINION AND ORDER denying 66 MOTION for Reconsideration by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT and DEBRA GLIBOWSKI,
No. 09-CV-1039 MCA/KBM
UNITED STATES OFFICE OF
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiffs’ Motion for Reconsideration of
the Opinion Entered 9/20/06 [Doc. 66].
The Court has considered the parties’
submissions, the relevant law, and has otherwise been fully advised in the matter. For the
following reasons, the Court hereby DENIES the Motion.
The parties are familiar with the background of this case, and thus the Court will
not address it in detail. In short, Plaintiffs, a married couple, were aggressively treated
for Lyme disease by Dr. Carol Ann Ryser in 2006 and 2007. [Doc. 23, pp. 5-7, 17]
Their insurance carrier, and subsequently the Office of Personnel Management (OPM),
denied payment for many tests and treatments ordered by Dr. Ryser on the grounds that
they were not medically necessary. [Doc. 23, p. 2] This Court entered a Memorandum
Opinion and Order in December, 2013, in relevant part concluding that OPM failed to
state why it rejected the aggressive treatment Plaintiffs received for Lyme disease, which
was consistent with International Lyme and Associated Diseases Society (ILADS)
Guidelines, which were a part of the record. [Doc. 23, p. 60] Absent from the record
was evidence supporting the conclusion that Plaintiffs’ tests and treatments did not meet
the criteria for being medically necessary, i.e., that they were inconsistent with standards
of good medical practice in the United States. [Doc. 23, pp. 60-61] Accordingly, the
Court remanded the case to OPM for OPM to “develop a record which indicates the
standards of good practice in the United States in sufficient detail to make an informed,
reasoned decision about whether or not Dr. Ryser’s treatment conformed to that
standard.” [Doc. 23, p. 61]
In October, 2015, OPM issued its second Final Decision, again denying benefits
for many treatments as not medically necessary. Plaintiffs filed a Motion to Enforce, and
argued that the October 2015 Final Decision did not comply with the Court’s December
2013 Memorandum Opinion and Order. [Doc. 45; Doc. 49] The Court granted-in-part
and denied-in-part Plaintiffs’ Motion to Enforce on September 20, 2016. [Doc. 65] On
October 17, 2016, Plaintiffs filed the present Motion for Reconsideration of the Opinion
Entered 9/20/2016. [Doc. 66] Additional background, as necessary, is set forth below.
Standard of Review
Rule 59(e) provides for motions to “alter or amend” a judgment if the motion is
filed within twenty-eight days of the judgment. Fed. R. Civ. P. 59(e). Although a final
judgment consistent with Rule 58 was not entered in this case, Plaintiff’s Motion is
properly considered under Rule 59(e) because the Memorandum Opinion and Order at
issue disposed of all issues and remanded the case. [Doc. 65, p. 32] See Wagoner v.
Wagoner, 938 F.2d 1120, 1122-23 (10th Cir. 1991) (holding that, though the Court had
not yet entered a judgment, a motion to reconsider an order that “dismissed plaintiff’s
complaint with prejudice” was “properly deemed filed pursuant to Rule 59(e)”); Hilst v.
Bowen, 874 F.2d 725, 726 (10th Cir. 1989) (stating that a motion to alter judgment may
be filed under Rule 59 “before a formal judgment has been entered” under Rule 58); but
cf. Trujillo v. Bd. of Educ. of Albuquerque Pub. Sch., 212 F. App’x 760, 765 (10th Cir.
2007) (unpublished decision) (stating that the district court has the discretion to revise its
interlocutory rulings, including an order granting summary judgment for the last
remaining defendant, prior to entry of a judgment, without applying the stricter standards
of Rule 59(e)).
“Rule 59(e) relief is available in limited circumstances, including [when there is]
‘(1) an intervening change in the controlling law, (2) . . . new evidence previously
[which was] unavailable, and (3) the need to correct clear error or prevent manifest
injustice.’” Hayes Family Trust v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th
Cir. 2017) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
“[A] motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. . . . It is not
appropriate to revisit issues already addressed or advance arguments that could have been
raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012 (internal citations
Plaintiffs primarily argue that OPM did not fulfill its duty, as set forth in
Gunderson v. United States Department of Labor, 601 F.3d 1013, 1022-23 (10th Cir.
2010), to provide an analysis and reason for favoring one scientific theory over the other.
[Doc. 66, p. 3] In particular, Plaintiffs argue that OPM’s October 2015 Final Decision
“completely fails to mention the opposing view, particularly the updated 2014 ILADS
Guidelines.” [Doc. 66, p. 3] Plaintiffs argue that the “Court should have required OPM
to discuss the two competing approaches to IV [intravenous] treatment of Lyme disease.”
[Doc. 66, p. 4]
This argument simply rehashes an argument Plaintiffs made previously. In their
Reply brief, Plaintiffs argued, inter alia, that OPM “refuses to acknowledge the existence
of chronic long-term Lyme disease or the ILADS Guidelines, and therefore the medical
necessity for the testing or treatment of any such disease.” [Doc. 49, p. 4] Accordingly,
Plaintiffs’ argument in the present motion is an inappropriate attempt to “revisit issues
already addressed,” and thus this argument is not a basis for relief under Rule 59(e).
Servants of the Paraclete, 204 F.3d at 1012.
Plaintiffs argue that OPM “failed to even include or mention the submittal of the
significant, published, highly researched [ILADS] Guidelines, which replaced the IDSA
[Infectious Disease Society of America] guidelines, upon which OPM relies, at the
National Guidelines Center.” [Doc. 66, p. 6] Plaintiffs submit that they sent OPM a
document identifying a link to the ILADS Guidelines on September 25, 2015. [Doc. 66,
pp. 3-4; Doc. 66-1, p. 3] Though Plaintiffs made this argument prior to the Court issuing
its Memorandum Opinion and Order, the Court did not address the argument and thus the
Court will construe this argument as one falling within the category of being made “to
correct clear error or prevent manifest injustice.” Servants of the Paraclete, 204 F.3d at
Gunderson sets the standard which OPM was required to meet in determining
whether the treatments were medically necessary.
Gunderson, 601 F.3d at 1022.
“[C]ourts generally afford [deference] to agency action that implicates scientific and
technical judgments within the scope of agency expertise. . . . They have a corresponding
obligation to use that skill when evaluating technical evidence.” Id. (internal quotation
marks, citations and emphasis omitted). “[C]oncomitant with the [Administrative Law
Judge’s] duty to resolve all conflicts in the medical evidence is the responsibility to
provide some general articulable basis for rejecting certain key medical evidence that
favors or disfavors an award of benefits.” Id. (internal quotation marks and citations
Plaintiffs’ argument is not persuasive. First, though OPM does not cite the ILADS
Guidelines, OPM addressed the two competing approaches. Thus, it is clear that OPM
considered the content and recommendations of the ILADS Guidelines. Moreover, OPM
stated its reasons for not finding the medical care at issue to be consistent with standards
of good medical practice by identifying the good medical practice, i.e., the IDSA
Guidelines. OPM’s final decision stated, in part (the full analysis is set forth in the
Court’s September 20, 2016 Memorandum Opinion and Order [Doc. 65]):
The concept of chronic Lyme disease has been extensively investigated and
confuted. For a number of reasons, the provider’s plan to treat with IV
antibiotics contravenes the preponderance of scientific data and falls
outside the current standard of common accepted practice. There is no
evidence that this patient has a condition for which IV antibiotics are
indicated. According to generally accepted, evidence-based, up-to-date
guidelines published by the Infectious Diseases Society of America
(IDSA), indications for parenteral antibiotics for patients with Lyme
disease include meningitis or radiculopathy, atrioventricular heart block
and/or myopericarditis, and may be considered for arthritis. Based upon
the information provided, the patient does not appear to have any of these
conditions. Moreover, there is not sufficient scientific data to support the
use of antibiotics beyond twenty-eight days, nor is there scientific data to
support the continuation of antibiotics until the resolution of symptoms.
This injudicious use of antibiotics is unlikely to provide any real
therapeutic benefit, unnecessarily exposes the patient to the risks associated
with prolonged intravenous access and prolonged exposure to antibiotics,
and contributes to the emergence of antibiotic resistant organisms.
Although Dr. Ryser and other “Lyme literate” physicians are critical
of the IDSA guidelines, it is worth noting that the guidelines for the
diagnosis and treatment of patients with Lyme disease have been
scrutinized by members of an independent medical review panel and found
to be “medically and scientifically justified” with no changes
[Doc. 65, p. 11; Doc. 46-1 (footnotes omitted)] Thus, without expressly naming them,
OPM rejected the ILADS recommendations (both the recognition of the “concept of
chronic Lyme disease” and administering antibiotic treatment for longer than 28 days)
and stated its reasons for doing so: the scrutiny of “an independent medical review
panel” and evidence from “four National Institutes of Health-sponsored antibiotic
treatment trials” which concluded that “retreatment provides little if any benefit and
carries significant risk.” [Doc. 65, pp. 11-12; Doc. 46-1, p. 4] Finally, OPM cited not
only the IDSA guidelines, issued in 2006, but a peer reviewed article “revisit[ing]” the
guidelines, published in 2013. [Doc. 65, pp. 11-12]
Having identified the evidence on which it relied to conclude that Plaintiffs’
treatments were not medically necessary, OPM complied with the dictates of Gunderson,
and thus, in turn, this Court’s 2013 Order. By addressing the aggressive Lyme disease
school of thought generally, OPM’s decision considered all important aspects of
Plaintiffs’ argument. See also Surgicore v. Office of Pers. Mgmt., 2006 WL 733548, at
*7 (N.D. Ill. Mar. 21, 2006) (“[A]n agency acts arbitrarily and capriciously when it
entirely fails to consider an important aspect of the problem.” (Internal quotation marks,
citation and brackets omitted)). OPM’s expert medical reviewer demonstrates that he or
she is familiar with the up-to-date research in his or her field. OPM and its reviewer did
not, as Plaintiffs suggest, have the duty to refute every contrary medical article, or even
those specifically identified by Plaintiffs. OPM merely had the duty to identify the
standards of good medical practice in the United States and sufficient support for those
standards for the Court to be able to trace OPM’s reasoning. In sum, OPM’s decision
resolved the “scientific dispute on scientific grounds” and OPM “provide[d] support for
favoring one opinion over another.” Gunderson, 601 F.3d at 1022-23 (internal quotation
marks and citation omitted).
Furthermore, Plaintiffs did not timely submit the evidence of the 2014 ILADS
Guidelines to OPM.1 In September, 2015, Plaintiffs sent a letter with the “link” to the
Though Plaintiffs’ counsel’s letter states that the ILADS Guidelines were “updated and
published” in September of 2015, [Doc. 66-1], Plaintiffs’ own attachment identifies the
document as being published online on July 30, 2014. [Doc. 66-1, pp. 5, 6] In addition,
though Plaintiffs submit that the ILADS Guidelines update and replace the IDSA
guidelines, Plaintiffs’ documentation supports a conclusion that the 2014 ILADS
guidelines replace the 2004 ILADS guidelines. [Doc. 66-1, p. 6 (stating that the
2014 ILADS Guidelines to OPM. [Doc. 66-1] However, OPM had asked Plaintiffs to
submit all evidence which “rebut[s] the findings or provide any additional information
not previously submitted or reviewed” by July 14, 2015.2 [Doc. 59-3, p. 23]
Finally, with regard to the 2014 ILADS Guidelines, under the circumstances of
this case the Court is not willing to hold that OPM acted arbitrarily or capriciously by
analyzing medical necessity under the best medical evidence available at the time of
treatment, 2006 and 2007, rather than contradictory guidelines that were published over
six years after the treatment was administered.
Thus, for the above reasons, it was not erroneous for OPM to fail to reference the
2014 ILADS Guidelines in its 2015 Final Decision.
Plaintiffs also argue that OPM failed to discuss forty “referenced articles sent by
Plaintiffs in June, 2015.” [Doc. 66, p. 6] Again, however, OPM need not discuss every
medical research article contrary to its conclusion. Instead, the Court must be able to
determine why OPM reached the conclusion that it did – and, as discussed above, the
Court is able to do that on this record.
Finally, Plaintiffs’ counsel disputes that he “admitted,” as argued by Defendant,
that a CD-ROM of unknown origin “was in fact prepared by his clients,” [Doc. 55, p. 2],
while nonetheless acknowledging that he is “not sure” where the CD-ROM came from
guidelines “replace those issued in 2004 (Exp Rev. Anti-infect Ther 2004;2:S1-13); Doc.
59-15, p. 48 to 59-16 p. 6 (the 2004 ILADS Guidelines, Expert Rev. Anti-infect. Ther.
Further, on February 4, 2015, prior to submitting the record to the medical reviewer,
OPM asked Plaintiff for “any additional documentation” by March 6, 2015. [Doc. 59-8,
and that “it is likely that Plaintiffs actually prepared it.” [Doc. 66, pp. 1-2] This
argument is irrelevant because: 1) the Court’s reasoning in the September 2016
Memorandum Opinion and Order addressed several reasons for disregarding the CDROM, irrespective of Defendant’s claim that Plaintiffs’ counsel “admitted” that his
clients prepared the CD, and, moreover, 2) even if this argument were persuasive, it is not
a basis for reconsideration as set forth in Servants of the Paraclete, 204 F.3d at 1012.
In sum, Plaintiffs’ have not persuaded the Court that the Court’s September 20,
2016 Memorandum Opinion and Order should be reconsidered.
WHEREFORE, for the foregoing reasons, the Court hereby DENIES Plaintiffs’
Motion for Reconsideration of the Opinion Entered 9/20/16. [Doc. 66]
SO ORDERED, this 22nd day of September, 2017 in Albuquerque, New Mexico.
M. CHRISTINA ARMIJO
Chief United States District Judge
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