S.M. v. Oxford Health Plans (NY), Inc. et al

Filing 95

OPINION AND ORDER re: 67 MOTION for Summary Judgment filed by United Health Group Incorporated, United Healthcare Services, Inc., Oxford Health Plans, LLC, Oxford Health Plans (NY), Inc., 66 MOTION for Summary Judgment < i>and to Sever Claim for Fraudulent Concealment filed by S.M. For the reasons set forth above, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Motion for Summary Judgment is GRANTED. Plaintiff's motion to sever is DENIED. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 66, 67, and to close this case. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 3/23/2015) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
S.M.,
OPINION AND ORDER
Plaintiff,
12 Civ. 4679 (ER)
– against –
OXFORD HEALTH PLANS (NY), INC., a/k/a
OXFORD HEALTH INSURANCE, INC.;
OXFORD HEALTH PLANS, LLC; UNITED
HEALTHCARE SERVICES, INC.; and
UNITEDHEALTH GROUP INCORPORATED,
Defendants.

RAMOS, D.J.:
Plaintiff S.M. 1 brings this action under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C § 1001 et seq., against Oxford Health Plans (NY), Inc., a/k/a Oxford
Health Insurance, Inc. (“Oxford”), Oxford Health Plans, LLC (“Oxford LLC”), United
Healthcare Services, Inc. (“United Healthcare”), and UnitedHealth Group Inc. (“UnitedHealth”),
(collectively, “Defendants”). Plaintiff, who was diagnosed with non-Hodgkin’s lymphoma,
claims that Defendants wrongfully denied her coverage for Gamunex, an immune-boosting drug
prescribed by her oncologist. In particular, Plaintiff maintains that Oxford’s determination that
Gamunex was not “medically necessary” in her case was improper and constituted a violation of
ERISA.

1

On June 29, 2012, this Court ordered that the notice of removal and its exhibits be sealed, that other docketed
documents be redacted to protect Plaintiff’s privacy, and that Plaintiff be referred to by her initials in court filings.
Doc. 9.

Presently before the Court are the parties’ cross-motions for summary judgment, both
made pursuant to Federal Rule of Civil Procedure 56, and Plaintiff’s motion to sever. See Docs.
66, 67. For the reasons discussed below, Plaintiff’s motion for summary judgment is DENIED,
and Defendants’ motion for summary judgment is GRANTED. Plaintiff’s motion to sever is
DENIED.
I.

Background 2
The following facts are undisputed except where otherwise noted.

A. Plaintiff’s Medical Condition
In September 2008, Plaintiff was diagnosed with non-Hodgkins lymphoma. Defs.’
Counterstatement Facts, Doc. 80 at ¶ 2. Since then, she has been treated by Dr. Janet Cuttner
(“Dr. Cuttner”), an oncologist at Mount Sinai Hospital. Id. at ¶ 3. As part of Plaintiff’s
treatment, she has been treated with a drug called Rituxan. 3 Id. at ¶ 4.
In August 2011, Dr. Cuttner diagnosed Plaintiff with an upper respiratory infection; the
following month, Plaintiff was diagnosed with severe pneumonia. Id. at ¶¶ 6-7. In response, Dr.
Cuttner prescribed Intravenous Immunoglobulin (“IVIG”) treatment in the form of the drug
Gamunex. Pl.’s Counterstatement Facts, Doc. 77 at ¶ 11. Gamunex consists of a solution
containing antibodies to help fight infections. Id. at ¶ 12. It is used to treat, inter alia,
autoimmune and immune deficiency disorders and may be administered to increase the

2

The following facts are drawn from the Parties’ Local Civil Rule 56.1 Statements, along with the administrative
record. Defendants indicate that the administrative record consists of 377 pages that Defendants produced, labeled
Oxford 000001-000377, and sixty-five pages that Plaintiff produced, labeled P-00001-00065. See Defs.’ Sur-Reply,
Doc. 94 at 2-3.
3

Plaintiff characterizes Rituxan as a form of chemotherapy. Pl.’s Stmt. Material Facts, Doc. 74 at ¶ 4. Defendants
counter that Rituxan is also used for non-chemotherapy purposes for patients suffering from various ailments
besides non-Hodgkin’s lymphoma and other types of cancer. Doc. 80 at ¶ 4.

2

gammaglobulin levels in patients with immune deficiencies, such as those whose immune
systems are compromised as a result of undergoing chemotherapy. Id. at ¶ 12; see also Doc. 80
at ¶ 10. The instant litigation concerns Oxford’s denial of coverage for Plaintiff’s Gamunex
treatment in 2011.

B. Plan Terms
In 2011, Plaintiff was covered by an Oxford healthcare plan entitled Freedom Plan Metro
(“the Plan”) which qualified as “an employee welfare benefit plan” as defined by ERISA, 29
U.S.C. § 1002(1). 4 Doc. 77 at ¶¶ 1-2; Doc. 80 at ¶ 5. The Plan provides that a beneficiary will
receive “Covered Services” when it is: (1) medically necessary; (2) properly referred/precertified, when required; and (3) while the beneficiary’s coverage is still in force. Doc. 77 at ¶ 2,
see also Oxford 000202. Under the Plan, Oxford has discretion to deny coverage for any health
care service that it determines, in its “sole judgment,” to be medically unnecessary. Id. at ¶ 3;
see also Oxford 000212. The term “medically necessary” is defined by the Plan to include a
service or supply which, as determined by its medical director, is: (1) “[c]onsistent with the
symptoms or diagnosis and treatment” of the member’s condition; (2) “[a]ppropriate with regard
to standards of good medical practice[;]” (3) not for the sole convenience of the member or a
provider; and (4) “[t]he most appropriate supply or level of service which can safely be
provided.” Oxford 000228; see also Doc. 77 at ¶ 3. The Plan goes on to state that “[u]nless
otherwise indicated . . . determinations as to Medical Necessity are made by Us, and such
determinations are solely within Our discretion.” Id.; see also Doc. 77 at ¶ 3.

4

The documents referred to as “the Plan” include the Member Handbook and New York Certificate of Coverage,
which provide the details of Plaintiff’s coverage. See Oxford 000146-000229.

3

After a member receives an initial adverse determination, she may challenge the
administrator’s determination by utilizing what the Plan refers to as the Utilization Review
(“UR”) Appeals process. Oxford 000162. The UR Appeals process provides for either “two
levels of internal review” or “one level of internal [r]eview and one level of [e]xternal [r]eview
by an outside clinical reviewer.” Id. The Plan states that medical necessity determinations
which result in a denial will be made by “appropriate clinical personnel,” specifically, a “clinical
peer reviewer.” Oxford 000159. Although the Plan does not define who constitutes a clinical
peer reviewer for the purposes of an initial adverse determination, it does provide a definition
with respect to an internal appeal. When an internal UR Appeal is involved, a clinical peer
reviewer is either: “a Physician with a current and valid non-restricted license to practice
medicine;” or “a health care professional (other than a licensed Physician) . . . in the same
professional and same or similar specialty as the Provider who typically manages the medical
condition or disease[.]” Oxford 000162. Requests that are eligible for an external appeal “will
be randomly assigned to a Certified External Appeal Agent[.]” Oxford 000167. At the external
appeal level, a clinical peer reviewer is a licensed Physician who “is board certified or board
eligible in the same or similar specialty as the Provider who typically manages the medical
condition or disease, or provides the health care service or treatment under Appeal;” and “has
been practicing in such an area of specialty for a period of at least five years and is
knowledgeable about the Health Care Service or treatment under Appeal.” Oxford 000162.
Under the Plan, a member is responsible for providing, “to the extent possible,
information that [Oxford] professional staff need in order to care for” the member. Oxford
000185, 000223; see also Doc. 77 at ¶ 5. In making medical necessity determinations, the
administrator may request additional information from the member’s provider and will deny
4

coverage if such additional information is not received within forty-five days of its request.
Oxford 000159; see also Doc. 77 at ¶ 5.
Plaintiff’s request for Gamunex coverage was also governed by Oxford’s specific policy
on IVIG treatment coverage. 5 Doc 69 at ¶ 7. The policy states that the documentation required
for medical director review of an initial request for IVIG treatment coverage consists of: (1) the
diagnosis; (2) office notes indicating the patient’s history, failure of conventional therapy, and
lab work supporting the need for IVIG; and (3) “clinically significant functional deficiency of
humoral immunity as evidenced by documented failure to provide antibodies to specific antigens
and a history of recurrent infections.” 6 P-00050. Medical director review of a request for
continuation of therapy requires additional information documenting: (1) “an objective response
to therapy[;]” (2) “the medical condition under treatment has not fully resolved[;]” (3) “a
sustained beneficial response to treatment[;]” (4) the “expected frequency and duration of
proposed IVIG treatment[;]” (5) “[t]itration to the minimum dose and frequency to maintain a
sustained clinical effect;” and (6) serum immunoglobulin levels prior to therapy for certain
diagnoses. Id. The policy explicitly provides that initial approvals are for a period of three
months, unless otherwise noted. Id.

5

Plaintiff counters that the relationship between the IVIG policy and her plan is unclear, and that the requests for
information that she and her Provider received do not comport with the policy. Doc. 77 at ¶¶ 7-8. However, the
evidence clearly contradicts this assertion. Oxford’s requests for information submitted to Dr. Cuttner’s office
conformed to the IVIG policy requirements, nearly verbatim. Compare P-00050, with P-00040, Oxford 000376, P00041.

6

The policy requires additional documentation for a diagnosis of hypogammaglobulinemia, showing the “persistent
absence of IgG1, IgG2, and/or IgG3.” P-00052. It also states that hypogammaglobulinemia “generally does not
require IVIG replacement for control of recurrent bacterial infections.” Id.

5

C. Plaintiff’s Application for Benefits
On September 15, 2011 Dr. Cuttner submitted Plaintiff’s first request for coverage of
Gamunex treatment to Oxford. Doc. 80 at ¶ 13. On the same day, Oxford requested additional
information from Plaintiff to process her claim. Doc. 80 at ¶ 12. In a letter dated September 16,
2011, Oxford informed Plaintiff of its decision to deny coverage. Doc. 77 at ¶ 14, Doc. 80 at
¶ 13. The letter explained that Oxford usually covers IVIG treatment for certain types of
problems, such as an immune deficiency, and for repeat bacterial infections. Oxford 000075. It
also stated that a member’s doctor must show that the patient “cannot make antibodies against
immunizations or common bacteria.” Id. The letter concluded, “[t]he information sent in does
not show that you meet these criteria.” Id. The medical necessity determination was made by
one of Oxford’s medical directors, Dr. Bruce Lundblad. Doc. 80 at ¶ 13. Plaintiff requested an
expedited appeal of the decision on September 19, 2011. Doc. 77 at ¶ 15.
Dr. Lundblad called Dr. Cuttner on September 21, 2011. Doc. 77 at ¶ 16, see also Doc.
80 at ¶ 16. Based on his conversation with Dr. Cuttner, Dr. Lundblad changed his initial
determination to allow for coverage of Plaintiff’s Gamunex treatment. Id. at ¶ 19. In Dr.
Lundblad’s notes contained in Plaintiff’s Individual Authorization Report (“IAR”), he
documented that Dr. Cuttner informed him that Plaintiff has a history of non-Hodgkins
lymphoma, severe pneumonia, and some previous infections which were not documented.
Oxford 000019. He further noted, “[w]ill change my determination because request at least
nearly meets criteria and because of history of recent severe bilateral pneumonia.” 7 Id. The next

7

Plaintiff counters that, in Dr. Lundblad’s deposition, he admitted that he knew Plaintiff had pneumonia as early as
September 16, 2011. Doc. 77 at ¶ 20 (citing Smith. Decl., Doc. 76 at 31:21-23). However, in the deposition
testimony provided to the Court, it does not appear that Dr. Lundblad was aware of the severity of Plaintiff’s
pneumonia when he made the initial adverse determination. See Smith. Decl., Doc. 76 at 31:21-23.

6

day, on September 22, 2011, Dr. Lundblad made a new entry in Plaintiff’s IAR, stating:
“Additional note: My decision to approve IVIG is only for 3 months. For renewal or
continuation, additional clinical information will be required.” 8 Oxford 000019. Plaintiff’s
Gamunex therapy was covered by Oxford from late September through late November 2011.
Doc. 80 at ¶ 22.
On November 22, 2011, Dr. Cuttner’s office requested an extension of Oxford’s coverage
of Plaintiff’s IVIG treatment until September 19, 2012. Doc. 77 at ¶ 23, see also Doc. 80 at ¶ 23.
The following day, Oxford sent a letter to Plaintiff requesting additional information regarding
her current medical condition. Id. at ¶ 24. On December 5, 2011, Dr. Cuttner’s office sent
Oxford a facsimile containing the following documents: (1) Dr. Cuttner’s progress notes from
September 13, 2011 to November 29, 2011; (2) lab test results from June, September and
November 2011; and (3) explanations and impressions of Plaintiff’s CT scan in September
2011. 9 Doc. 77 at ¶ 25. On December 6, 2011, Dr. Lundblad submitted a second request for the
following additional information regarding Plaintiff’s condition: 10 (1) the member’s diagnosis
and the basis for it; (2) whether the condition under treatment has fully resolved;
(3) documentation of an objective sustained beneficial response to therapy; (3) the expected
duration and frequency of the proposed IVIG treatment; (4) baseline Immunoglobulin G (“IgG”)

8

Plaintiff characterizes this entry as evidence of Dr. Lundblad “changing his mind for a second time.” Doc. 74 at
¶ 20. Defendant maintains that this description is unsupported by the facts. Doc. 80 at ¶ 20.

9

Plaintiff indicates that these records reflect Plaintiff’s medical condition with the benefit of Gamunex treatment.
Doc. 77 at ¶ 25.

10
The administrative record contains different dates pertaining to Oxford’s second request for information. The
entry in the IAR pertaining to the request for additional information is dated December 6, 2011. Oxford 000014,
000020. However, the actual facsimile from Oxford to Dr. Cuttner’s office containing the request indicates that it
was sent on December 7, 2011. P-00041.

7

levels and documentation of impaired antibody production to specific antigens; and (5) a history
of recurrent infections. Oxford 000020; see also P-00041.
On December 7, 2011, Dr. Cuttner’s responded to Oxford’s second request for
information by resubmitting the same medical records, along with a letter from Dr. Cuttner. See
Oxford 000363-000374. In her letter, Dr. Cuttner stated that Plaintiff was diagnosed with an
upper respiratory infection in August 2011, and “very severe pneumonia” in September 2011. P00024. Dr. Cuttner wrote that Plaintiff was successfully treated with antibiotics and received
Gamunex treatment since October 2011. Id. Plaintiff’s doctor confirmed that her pneumonia
had resolved and her gammaglobulin levels were normal, “which shows the gammaglobulin
treatment is working.” Id. Dr. Cuttner concluded that “[i]t would be important for the patient to
continue prophylactic treatment with Gamunex through the winter months” and referred Oxford
to the attached chest x-ray, CT scan, and past and present IgG levels. Id.
That same day, Dr. Lundblad determined that Plaintiff’s IVIG treatment was not
medically necessary. 11 Doc. 77 at ¶ 29, see also Doc. 80 at ¶ 28. In his notes on Plaintiff’s IAR,
Dr. Lundblad stated that his decision was based on a lack of evidence that Plaintiff had a
confirmed diagnosis of “CVID” (presumably, common variable immunodeficiency) or “other
covered/approved indication.” Oxford 000020. Furthermore, there was no documentation of
“impaired antibody production to specific antigens” or “that the medical condition under
treatment has not fully resolved.” 12 Id. His notes further indicate that, on December 14, 2011,

11

Plaintiff characterizes Dr. Lundblad’s denial of coverage as him having “changed his mind for a third and last
time.” Doc. 74 at ¶ 28. Defendants dispute this description, stating that Plaintiff’s December 7, 2011 request for
coverage was “separate and distinct” from her September 2011 request. Doc. 80 at ¶ 28.
12

Defendants contend that, based on the documents Dr. Cuttner submitted, at the time of the request, Plaintiff’s IgG
levels were in a normal range, she reported feeling well, having a good appetite, no muscle or joint pain, chest pain,
headache, or fever. Doc. 69 at ¶ 45. Furthermore, Dr. Cuttner stated that“[a]ny further IVIG treatment would be for

8

he discussed his denial with Dr. Cuttner. Id. In the same entry he states, “[p]reviously approved
for 3 months as an exception in the setting of a life threatening pneumonia. However the
pneumonia has resolved . . . there is no documentation that the medical condition under treatment
has not fully resolved . . . denial upheld at this time.” 13 Id. In his deposition, Dr. Lundblad
confirmed that he did not consult with any oncologists in reaching his determination. 14 Doc. 80
at ¶ 30. Defendants do not dispute that he was not aware that Plaintiff’s non-Hodgkins
lymphoma was being treated with Rituxan. Doc. 80 at ¶ 43.
In a letter dated December 8, 2011, Oxford informed Plaintiff of its denial. Oxford
000093. The letter stated that IVIG treatment is covered for specific types of problems such as
immune deficiency and repeat infections. Id. However, a member’s doctor is required to show
that the patient “cannot make antibodies against immunizations or bacteria” and that the patient’s
problem “has not fully resolved.” Id. The letter concluded, “[t]he information sent in does not
show that you [Plaintiff] meet these criteria.” Id.

D. Plaintiff’s Appeals
On December 19, 2011 Plaintiff requested an expedited appeal of Dr. Lundblad’s denial
of coverage. Doc. 77 at ¶ 39. In connection with Plaintiff’s request, Dr. Cuttner’s office sent

prophylactic measures only.” Id. Plaintiff objects to this description because it omits the fact that Plaintiff had nonHodgkins lymphoma as of December 2011 and her condition “cannot be considered without acknowledging the
ongoing Gamunex treatment.” Doc. 77 at ¶ 45.
13

Defendants maintain that the initial approval was indeed granted as an exception to Oxford’s policy “due to severe
pneumonia.” See Doc. 68 at 12. Plaintiff argues that this notation is inconsistent with Dr. Lundblad’s September
2011 determination, in which his approval was based on “previous infections” and “recent severe bilateral
pneumonia.” Doc. 77 at ¶ 32. In her papers, Plaintiff again points out that Dr. Lundblad did not write anything in
the IAR about the initial approval constituting an “exception” at the time he decided to limit coverage to three
months. Doc. 84 at 7.
14

Plaintiff maintains that Dr. Lundblad did not consult with the oncologists “made available to him.” Doc. 74 at
¶ 30. Defendants counter that Plaintiff omits the portion of Dr. Lundblad’s deposition in which he explained that he
did not consult with oncologists because he was confident in his decision. Doc. 80 at ¶ 30.

9

Oxford a twenty-two page facsimile containing the previously forwarded medical records, Dr.
Cuttner’s letter of December 7, 2011, Oxford’s November 23, 2011 information request,
handwritten notes and prior facsimile cover sheets. Id. By letter dated December 21, 2011,
Oxford informed Plaintiff of its decision to uphold the initial adverse determination, stating that
the basis for its conclusion that it was not medically necessary was a lack of “supporting data
regarding ability to produce function antibody [sic] in response to a vaccine challenge.” Doc. 80
at ¶¶ 31-34. Plaintiff’s IAR indicates that Plaintiff’s appeal was reviewed and denied by Oxford
medical director Dr. Helga Bahr. See Oxford 000015, 000346-49.
On January 10, 2012, Plaintiff requested an external review of Oxford’s denial of
coverage for Plaintiff’s IVIG treatment with the New York State Department of Financial
Services. Doc. 77 at ¶ 41. That same day, an entity certified by the State of New York to
conduct external appeals, which the parties refer to as “MCMC,” submitted a request to Oxford
for the production of documents relevant to Plaintiff’s denial of coverage. Doc. 80 at ¶ 38. An
Oxford employee named Margaret Williams (“Williams”) responded to MCMC’s request via
letter dated January 10, 2012, which included a summary of events, Plan documents, and
correspondence regarding Plaintiff’s coverage denial and appeal. Id. at ¶ 39. On January 13,
2012, MCMC reviewed Oxford’s denial of coverage for Plaintiff’s Gamunex treatment. 15 Doc.
77 at ¶ 41.

15

The parties agree that MCMC conducted its review in connection with New York State’s Medical Care
Ombudsman Program. Doc. 77 at ¶ 41. However, they disagree as to whether MCMC’s review was truly
“independent.” Id. The Amended Complaint implies that the external reviewer was conflicted because Oxford and
UnitedHealth are referred to as MCMC’s “clients.” Am. Compl. ¶ 3. Plaintiff’s papers do not pursue this argument
further, nor has she submitted any evidence to support this claim. Moreover, the external appeal determination
formally attests that the external reviewer “has confirmed that he or she has no material . . . professional, or financial
conflict of interest with . . . [the] health plan (including its officers, directors, or management employees) . . . [or the]
external review organization[.]” Oxford 000121.

10

According to documentation provided by MCMC, a physician certified in internal
medicine with a subcertification in hematology conducted the external review. Oxford 000122.
The reviewer’s areas of expertise included leukemia/lymphoma treatment and chemotherapy
treatments/side effects. Id. The external reviewer upheld Oxford’s denial of coverage, stating:
While IVIG treatment in this case has been shown to raise the IgG
level, there is insufficient evidence based on the information
provided to indicate that withholding IVIG would clearly be
detrimental to this patient. Furthermore, there is also insufficient
evidence to clearly indicate that IVIG treatment would be health
beneficial.
She has had two infections, and there is no
documentation that she had any other infection besides these. In the
absence of a clear history of recurrent infection, and in particular in
the absence of any history of recurrent severe or life threatening
infections, such as those requiring hospital admission or IV
antibiotics, there is insufficient evidence to support the medical
necessity of IVIG treatment. This conclusion is further supported
by the lack of any evidence that this patient has deficient humoral
responses to vaccination.
Oxford 000124. The external reviewer also indicated that Plaintiff’s medical records and
accompanying information were sufficient to determine whether the Plan should cover the
treatment she was seeking. Oxford 000123.
On January 11, 2013, approximately one year after Plaintiff’s appeal was denied, Dr.
Cuttner submitted another request for coverage of Plaintiff’s Gamunex treatment, which included
a letter from Dr. Cuttner indicating that Plaintiff’s disease “recently transformed to a more
aggressive lymphoma” and that she would be receiving “combination chemotherapy” which
would “put her at risk of severe infections.” Nguyen 2d. Aff., Ex. A; see also Doc. 80 at ¶¶ 68,
70. An Oxford medical director named Dr. Hui approved coverage for a limited amount of time,

11

citing Plaintiff’s history of pneumonia, her low IgG levels and chemotherapy treatment. 16 OHP
000011.

E. Procedural History
On May 10, 2012, Plaintiff filed a complaint against Defendants in the Supreme Court of
the State of New York, New York County. Defs.’ Joint Notice Removal, Doc. 1, Ex. A.
Plaintiff alleged three causes of action consisting of fraud, deceptive trade practices, and unjust
enrichment. Id. On June 14, 2012, Defendants removed the state action to this Court on the
basis of federal question jurisdiction, alleging that it was preempted by ERISA. Doc. 1 at 1-2.
On August 4, 2012, Plaintiff filed a motion to remand this action back to state court. Pl.’s Mot.
Remand, Doc. 17. On March 22, 2013, the court denied Plaintiff’s motion. 17 See Order, Doc.
25. The court stated, “S.M. has sued ‘only to rectify a wrongful denial of benefits promised
under [an] ERISA-regulated plan[ ],’ and ‘[Defendants’] potential liability . . . derives entirely
from the particular rights and obligations established by the benefit plan [ ].’” Id. at 9 (citing
Aetna Health Inc. v. Davila, 542 U.S. 200, 210-211, 213 (2004)).
On April 29, 2013, Plaintiff filed an Amended Complaint, challenging the denial of
benefits under ERISA § 502(a)(1)(B), which provides that a plan beneficiary or participant may
bring an 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.”
Am. Compl., Doc. 26. She additionally seeks redress under ERISA § 502(c), which applies
penalties for an administrator’s refusal to supply requested information. Id. The Amended

16

Defendants correctly note that the facts related to Plaintiff’s Gamunex treatment in 2013 are contained in
documents that fall outside of the administrative record. Doc. 79 at 7.
17

The Order was issued by the Honorable Paul Gardephe, to whom this case was previously assigned.

12

Complaint may also be generously construed as seeking redress for breach of fiduciary duty
under ERISA § 502(a)(3). 18 Id.
On April 1, 2014, Magistrate Judge James C. Francis IV, granted Plaintiff’s motion to
compel production of the IARs authorizing coverage for Rituxan in 2011, 2012, and 2013, and
Gamunex in 2012 and 2013. Doc. 59.
II.

Legal Standards
A. Cross-Motions for Summary Judgment: Applicable Legal Standard
Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno
v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might
affect the outcome of the litigation under the governing law. Id.
The party moving for summary judgment is first responsible for demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If the burden of proof at trial would fall on the movant, that party’s “own submissions in
support of the motion must entitle it to judgment as a matter of law.” Albee Tomato, Inc. v. A.B.
Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir. 1998). Conversely, “[w]hen the burden of

18

Defendants also interpret Plaintiff’s allegations as stating a claim that Oxford denied her a full and fair review.
Doc. 68 at 23. Under ERISA, any participant whose claim for benefits has been denied is entitled to “a full and fair
review by the appropriate named fiduciary of the decision denying the claim.” 29 U.S.C.A. § 1133(2). The
Amended Complaint does not allege that Oxford denied Plaintiff the opportunity to present evidence, that it failed
provide her with access to relevant records at the time of its review, or that she was denied the opportunity to rebut
or comment on Oxford’s determination. “A full and fair review concerns a beneficiary’s procedural rights, for
which the typical remedy is remand for further administrative review.” Krauss v. Oxford Health Plans, Inc., 517
F.3d 614, 630 (2d Cir. 2008). Remand is considered to be unnecessary where it would be futile, as it is here.
Giordano v. Thomson, 564 F.3d 163, 168 n.3 (2d Cir. 2009) (citing Krauss, 517 F.3d at 630).

13

proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point
to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.”
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp.,
477 U.S. at 322-23). If the moving party meets its burden, “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)
(citing Celotex Corp., 477 U.S. at 322-23).
In deciding a motion for summary judgment, the Court must “construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)) (internal
quotation marks omitted). However, in opposing a motion for summary judgment, the nonmoving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March
of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do
more than show that there is “some metaphysical doubt as to the material facts.” McClellan v.
Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)) (internal quotation mark omitted). To defeat a motion for
summary judgment, “the non-moving party must set forth significant, probative evidence on
which a reasonable fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at 467-68
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 (1986)).
The same legal standard applies when analyzing cross-motions for summary judgment.
See Schultz v. Stoner, 308 F. Supp. 2d 289, 298 (S.D.N.Y. 2004) (quoting Aviall, Inc. v. Ryder
Sys., Inc., 913 F. Supp. 826, 828 (S.D.N.Y. 1996)). “[E]ach party’s motion must be examined on

14

its own merits, and in each case all reasonable inferences must be drawn against the party whose
motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.
2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.1981)). The Court is
not required to grant summary judgment in favor of either moving party. See id. (citing
Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)).
In ERISA actions challenging the denial of benefits, “the general practice is to treat the
parties’ submissions as cross-motions for summary judgment, and, if summary judgment is
denied because material facts are in dispute, to conduct a ‘bench trial’ with the Court acting as
the finder of fact.” Kagan v. Unum Provident, 775 F. Supp. 2d 659, 672 (S.D.N.Y. 2011) (citing
Fairbaugh v. Life Ins. Co. of N. Am., 737 F. Supp. 2d 68, 79 n.9 (D. Conn. 2010)). Put simply, a
motion for summary judgment “provides an appropriate vehicle whereby the Court can apply
substantive ERISA law to the administrative record.” Gannon v. Aetna Life Ins. Co., No. 05 Civ.
2160 (JGK), 2007 WL 2844869, at *6 (S.D.N.Y. Sept. 28, 2007). “In such an action ‘the
contours guiding the court’s disposition of the summary judgment motion are necessarily shaped
through the application of the substantive law of ERISA.’” Alfano v. CIGNA Life Ins. Co. of
New York, No. 07 Civ. 9661(GEL), 2009 WL 222351, at *12 (S.D.N.Y. Jan. 30, 2009) (quoting
Ludwig v. NYNEX Serv. Co., 838 F. Supp. 769, 780 (S.D.N.Y. 1993)).

B. ERISA Standard of Review for Actions Involving Denial of Benefits
“ERISA does not set out the applicable standard of review for actions challenging benefit
eligibility determinations.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002) (quoting
Zuckerbrod v. Phoenix Mut. Life Ins. Co., 78 F.3d 46, 49 (2d Cir. 1996)) (quotation marks
omitted). However, the Supreme Court has held that “a denial of benefits challenged under
[ERISA] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan
15

gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115,
(1989). When such discretionary authority is reserved, a court “will not disturb the
administrator’s ultimate conclusion unless it is ‘arbitrary and capricious.’” Hobson v. Metro.
Life Ins. Co., 574 F.3d 75, 82 (2d Cir. 2009) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d
438, 441 (2d Cir. 1995)). The plan administrator bears the burden of proving that the arbitrary
and capricious standard of review applies. Kinstler v. First Reliance Standard Life Ins. Co., 181
F.3d 243, 249 (2d Cir. 1999) (citing Sharkey v. Ultramar Energy Ltd., Lasmo plc, Lasmo (AUL
Ltd.), 70 F.3d 226, 230 (2d Cir. 1995)). Here, the parties agree that that the arbitrary and
capricious standard of review is appropriate. 19 See Doc. 68 at 3; Doc. 75 at 10-11.
III.

Discussion
A. Defendants’ Joint Liability
The parties agree that “Plaintiff enrolled in a . . . Plan . . . covered by Oxford Health

Insurance, Inc. [Oxford].” Doc. 77 at ¶ 1. However, Defendants argue that the other parties—
Oxford LLC, United Healthcare, and UnitedHealth—are not proper defendants in this case
because there is a lack of privity between Plaintiff and these three defendants. Defs.’ Mem. L.
Supp. Mot. Summary J., Doc. 68 at 1 n.1. Plaintiff counters that the name “UnitedHealthcare
Group Inc.” is “featured prominently” on the Plan. Pl.’s Mem. L. Opp., Doc. 84 at 13.
19

The Court notes that some district courts outside of the Second Circuit have determined that an external review
that is binding on the administrator removes the plan from the administrator’s discretion, compelling de novo review
of the final denial of benefits. See Alexandra H. v. Oxford Health Ins., Inc., No. 11 Civ. 23948, 2013 WL 4002883,
at *9 (S.D. Fla. Aug. 6, 2013) (“Accordingly, as the New York external-appeal process requires a plan to divest its
discretion in favor of the external reviewer’s decision, a de novo standard of review is appropriate here.”); K.F. ex
rel. Fry v. Regence Blueshield, No. 08 Civ. 0890 (RSL), 2008 WL 4223613, at *2 (W.D. Wash. Sept. 10, 2008)
(The de novo standard of review applies where the administrator’s adoption and implementation of the independent
review organization’s decision “was mechanical and did not involve the exercise of discretion”). While there is no
binding Second Circuit case law on this issue, on the facts presented, the Court would uphold Defendants’
determination even under a de novo standard of review.

16

However, there is no indication that any of the Defendants in this case operate under the name
“UnitedHealthcare Group Inc.” She further maintains that Oxford is a wholly owned subsidiary
of UnitedHealth, “operating as Oxford solely for the purposes of using the Oxford brand.” Id.
Simply stated, Plaintiff has not established that any Defendant other than Oxford is
subject to suit under ERISA. Defendants’ corporate disclosure statement reveals that Oxford,
Oxford LLC, and United Healthcare are all wholly owned subsidiaries of UnitedHealth. Doc. 8.
Generally, “a parent corporation and its subsidiary are regarded as legally distinct entities and a
contract under the corporate name of one is not treated as that of both.” Carte Blanche
(Singapore) Pte., Ltd. v. Diners Club Int’l, Inc., 2 F.3d 24, 26 (2d Cir. 1993) (citing 1 Fletcher
Cyc. Corp. § 43 (perm. ed. 1990)). As a matter of contract law, New York courts will only
pierce the corporate veil to “prevent fraud or other wrong, or where a parent dominates and
controls a subsidiary.” Id. Plaintiff does not ask the Court to pierce the corporate veil. Nor
does she provide evidence to support her claim that “[a]ll defendants administer the claims
jointly and all are directly liable.” Doc. 77 at ¶ 1. Instead, she assumes that UnitedHealth Group
Inc. and all of its subsidiaries must be held jointly liable, simply due to their corporate
relationship and the fact that a United Healthcare logo appears on the Plan. 20
Plaintiff has failed to adequately allege claims against Oxford LLC, United Healthcare, or
UnitedHealth. Therefore, these parties must be dismissed from the case.

20
Plaintiff cites a case in which the Second Circuit stated, “[t]he defendants, Oxford Health Plans, Inc., Oxford
Health Plans (N.Y.), Inc., and Oxford Health Insurance, Inc. . . . administer claims for benefits under the plan.”
Krauss, 517 F.3d at 617. Plaintiff neglects the case caption in the instant action, which refers to Oxford Health
Plans (N.Y.), Inc. and Oxford Health Insurance, Inc. as one entity. Oxford Health Plans, Inc. is not named as a
defendant in this case.

17

B. Conflict of Interest
i.

Structural Conflict of Interest
“If a benefit plan gives discretion to an administrator or fiduciary who is operating under

a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is
an abuse of discretion.’” Firestone, 489 U.S. at 115 (quoting Restatement (Second) of Trusts
§ 187, Comment d (1959)). Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). A
structural conflict, standing alone, is insufficient to establish that a conflict of interest actually
influenced Oxford’s decision to deny benefits. See Kagan v. Unum Provident, No. 03 Civ. 8130
(KMK) (GAY), 2009 WL 3486938, at *2 (S.D.N.Y. Oct. 29, 2009) (citing Glenn, 554 U.S. at
108). “[T]he significance of the factor will depend upon the circumstances of the particular
case.” Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). Although a court must take a
conflict of interest into account and weigh it as a factor in determining whether there was an
abuse of discretion, it “does not make de novo review appropriate.” McCauley v. First Unum
Life Ins. Co., 551 F.3d 126, 133 (2d Cir. 2008). “This is true even where the plaintiff shows that
the conflict of interest affected the choice of a reasonable interpretation.” Id.
Under Glenn, a court must engage in a two-part inquiry. The first step requires
determining whether the “plan administrator both evaluates claims for benefits and pays benefits
claims.” Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 138 (2d Cir. 2010)
(quoting Glenn, 554 U.S. at 112). Next, a court should ask “how heavily to weigh[] the conflict
of interest thus identified, considering such circumstances as whether procedural safeguards are
in place that abate the risk[.]’” Id. (quoting Glenn, 554 U.S. at 117). In sum,
The conflict of interest at issue . . . should prove more important
(perhaps of great importance) where circumstances suggest a higher
likelihood that it affected the benefits decision, including, but not
limited to, cases where an insurance company administrator has a
18

history of biased claims administration. [. . .] It should prove less
important (perhaps to the vanishing point) where the administrator
has taken active steps to reduce potential bias and to promote
accuracy, for example, by walling off claims administrators from
those interested in firm finances, or by imposing management
checks that penalize inaccurate decisionmaking irrespective of
whom the inaccuracy benefits.
Glenn, 554 U.S. at 117 (internal citations omitted). Since determining whether the denial of
benefits is “tinged” by a conflict of interest is “distinct from the reasonableness of the plan
administrators’ decision, the district court will not be confined to the administrative record.”
Zervos v. Verizon New York, Inc., 252 F.3d 163, 174 (2d Cir. 2001).
As to the first step of Glenn’s two-pronged test, the parties agree that Oxford both
evaluates and pays benefits claims. Doc. 75 at 10; Doc. 79 at 9. Where the “evaluation of
claims is entrusted (at least in part) to representatives of the entities that ultimately pay the
claims allowed[,]” it “is precisely the type of interest conflict to which Glenn applies.”
Durakovic, 609 F.3d at 139.
The Parties fail to address the second prong in their briefs. However, the evidence shows
that the appeals process was structured in such a way, and that Oxford took affirmative steps, to
reduce the risk of bias. Specifically, the administrative record reveals that Oxford undertook
various attempts to contact Dr. Cuttner’s office seeking more information and that Dr. Lundblad
made efforts to speak directly with Dr. Cuttner on more than one occasion. See Oxford 00001920, 000092. Courts have pointed to evidence that a reviewer attempted to contact a beneficiary’s
treating physician and include his or her input in the file as indicative of an effort to promote
accuracy. See Siegel, 2012 WL 2394879, at *16; see also St. Onge v. Unum Life Ins. Co. of Am.,
559 F. App’x 28, 32 (2d Cir. 2014) (observing that the administrator consulted with the
beneficiary and her treating physician).
19

Furthermore, while Oxford’s initial determination was made by Dr. Lundblad, his
decision was reviewed and affirmed at the first-level appeal phase by a different physician and
medical director, Dr. Bahr. See Oxford 000015. Plaintiff’s second-level appeal was reviewed
externally by yet another physician, at her specific request, who upheld Dr. Lundblad’s
determination. See Oxford 000122. Courts have typically credited an administrators’
assignment of separate individuals to process a beneficiary’s appeal as signaling an effort to
reduce potential bias and promote accuracy. See Wedge v. Shawmut Design & Const. Grp. Long
Term Disability Ins. Plan, 23 F. Supp. 3d 320, 336 (S.D.N.Y. June 2, 2014) (observing that “the
review [of the plaintiff’s appeal] was conducted by different individuals than those who made the
initial determination to deny Plaintiff’s benefits”); Siegel v. Hartford Life Ins. Co., No. 10 Civ.
4285 (DRH) (ETB), 2012 WL 2394879, at *16 (E.D.N.Y. June 25, 2012) (noting, in part, that
the insurer “assigned separate individuals to process her [the beneficiary’s] appeal”).
Finally, an administrator’s initial decision to award benefits may be viewed as further
evidence of an absence of bias because such a decision cuts against its financial interest. Siegel,
2012 WL 2394879, at *17 (citing Bendik v. Hartford Life Ins. Co., No. 03 CIV. 8138 (LAP),
2010 WL 2730465, at *5 (S.D.N.Y. July 12, 2010) aff’d, 432 F. App’x 24 (2d Cir. 2011)) (an
administrator’s decision to pay short-term disability benefits, but deny long-term disability
benefits diminishes the importance of a conflict of interest). The fact that Dr. Lundblad
approved coverage of Plaintiff’s IVIG treatment for three months after speaking with her treating
physician suggests that his decision to not extend coverage beyond that time period was not
driven by Oxford’s financial interest. See Oxford 000019-20.
In terms of proving a structural bias, Plaintiff contends that Oxford has a “history of
biased claims,” pointing to three cases in which courts in this circuit ruled against Oxford in
20

cases challenging its denial of benefits. Pl.’s Mem. L. Supp. Mot. Summary J., Doc. 75 at 22-23.
However, in one of the cases Plaintiff cites, the court did not undertake a conflict of interest
analysis. Scalamandre v. Oxford Health Plans (N.Y.), Inc., 823 F. Supp. 1050, 1059 (E.D.N.Y.
1993). Instead, it applied the de novo standard of review only after finding that the explicit terms
of the plan at issue did not grant Oxford discretion to construe the insurance contract. Id. The
other two decisions Plaintiff cites did indeed result in a finding of bias on behalf of Oxford
warranting de novo review. See Demonchaux v. Unitedhealthcare Oxford, No. 10 Civ. 4491
(DAB), 2012 WL 6700017, at *6-8 (S.D.N.Y. Dec. 20, 2012) (“Plaintiff has provided a good
deal of evidence that Defendant’s conflict of interest actually affected its decision[.]”); Schwartz
v. Oxford Health Plans, Inc., 175 F. Supp. 2d 581, 591 (S.D.N.Y. 2001) (same). 21
However, those decisions are offset by the several cases in this Circuit in which courts
opted to give Oxford’s conflict of interest little, if any, weight. For example, in Fay v. Oxford
Health Plan, the Second Circuit upheld a district court’s application of the arbitrary and
capricious standard of review in a case involving Oxford. 287 F.3d 96, 109 (2d Cir. 2002). The
Second Circuit pointed out that, given the lower court’s conclusion that Oxford’s decision to
deny benefits “rested on adequate evidence,” it was “preclud[ed] from finding that a conflict of
interest in fact affected the outcome of Oxford’s review.” Id. (emphasis in original). Similarly,
in Stern v. Oxford Health Plans, Inc., a district court again determined that the “plaintiff has
adduced no specific evidence showing that the conflict of interest affected the reasonableness of

21

It is important to note, however, that the mode of analysis undertaken by Schwartz has been abrogated by the
Second Circuit. The Schwartz court inquiry asked whether the determination made by the administrator was
reasonable and whether the evidence showed that the administrator was in fact influenced by such conflict. 175 F.
Supp. 2d at 588-89 (quoting Sullivan v. LTV Aerospace & Def. Co., 82 F.3d 1251, 1255 (2d Cir. 1996)). The
Second Circuit has since rejected this line of inquiry in favor of the Glenn approach, to which this courts adheres.
McCauley v. First Unum Life Ins. Co., 551 F.3d 126, 128 (2d Cir. 2008) (“We find this standard to be inconsistent
with the Supreme Court's instructions in Glenn and abandon it.”)

21

Oxford’s determination.” No. 12 Civ. 2379 (JFB) (EBT), 2013 WL 3762898, at *6-7 (E.D.N.Y.
July 17, 2013). As a result, the conflict of interest was entitled to “little weight” and was
“overwhelmingly outweighed by the other factors supporting Oxford’s adverse benefits
determination.” Id. at *7.
Given Oxford’s efforts to reduce the risk of bias in this case, and prior decisions in which
Oxford’s determinations were deemed not to have been tainted by conflict, the Court finds that
there is an insufficient basis to infer “a history of biased claims administration” on the part of
Oxford here. See Burgio v. Prudential Ins. Co. of Am., No. 06 Civ. 6793 (JS) (AKT), 2011 WL
4532482, at *8 (E.D.N.Y. Sept. 26, 2011) (stating that the court “is reluctant to infer an improper
motive on the strength of the outcome of other cases” where there are a number of conflicting
decisions in which the insurer’s denial of benefits has been both reversed and upheld).
ii.

Case-Specific Allegations of Bias
Ultimately, “[n]o weight is given to a conflict in the absence of any evidence that the

conflict actually affected the administrator’s decision.” Durakovic, 609 F.3d at 140. In support
of Plaintiff’s contention that her claim was actually affected by a conflict of interest, she points
to several irregularities to argue that Oxford’s conflict of interest “led to a result-driven
conclusion.” Doc. 75 at 11. Plaintiff’s strongest points are made in relation to (1) Dr.
Lundblad’s failure to consider the fact that she was being treated with Rituxan, and (2) Oxford’s
subsequent approval of IVIG treatment in 2013. Yet even these arguments are ultimately
unavailing.

22

Information Provided to Dr. Lundblad
First, Plaintiff suggests that Defendants deliberately “walled off” Dr. Lundblad from
knowing that she was being treated with chemotherapy in the form of the drug Rituxan. Doc. 75
at 15-16. In arguing why knowledge of her Rituxan treatment would be relevant, Plaintiff cites
an excerpt of Rituxan’s medication guide, which indicates that some patients who receive the
drug develop low antibody levels which may lead to serious infections. 22 Id. at 16 (citing Berg.
Decl., Ex. 19). However, as Defendants note, the materials submitted by Dr. Cuttner did not
reference Plaintiff’s Rituxan treatment. 23 Defs.’ Mem. L. Opp., Doc. 79 at 3; see also Oxford
000363-000374. Therefore, on the record presented to Oxford, no connection was made between
the fact that Plaintiff had undergone Rituxan therapy and Dr. Cuttner’s decision to prescribe
Gamunex.
In any event, Plaintiff has failed to show that Oxford purposely blocked off Dr. Lundblad
from learning about her course of treatment or that, had he known, the outcome would have
necessarily been different. As Dr. Lundblad testified, the issue of whether a member is
undergoing chemotherapy or Rituxan treatment is not in and of itself part of the criteria that
Oxford considers pursuant to its policy on approving coverage of IVIG treatment. See Berg.
Decl., Ex. 9 at 88:7-17; see also Nguyen Aff., Ex. C. He also maintained that Plaintiff’s Rituxan

22

Defendants argue that, because Plaintiff’s course of treatment with Rituxan is outside the administrative record,
Plaintiff’s reliance on it is irrelevant and should not be considered. Doc. 79 at 3 n.3. However, “evidence outside
the administrative record is sometimes relevant, such as, but not limited to, to determine whether the administrator
of the plan had a conflict of interest.” Kagan v. Unum Provident, No. 03 Civ. 8130 (KMK) (GAY), 2009 WL
3486938, at *1 (S.D.N.Y. Oct. 29, 2009); see also Zervos, 252 F.3d at 174.
23
In their opposition papers, Defendants claim that the materials Dr. Cuttner submitted “made absolutely no
reference to Rituxan or chemotherapy.” Doc. 79 at 3. However, on the progress note which Dr. Cuttner submitted
to Oxford “yes” is circled next to the heading “chemo.” Oxford 000373. However, the records—to the extent they
contain legible handwriting—do not appear to specify whether Plaintiff was currently undergoing chemotherapy or
whether she received chemotherapy in the form of Rituxan.

23

treatment “was not a detail that was needed” to make his determination. Berg. Decl., Ex. 9 at
99:4-5. There is thus no basis to conclude that Dr. Lundblad’s lack of awareness of Plaintiff’s
Rituxan treatment is probative of bias resulting from a conflict of interest. 24
Approval of Gamunex Coverage in 2013
Plaintiff cites Oxford’s decision to approve Gamunex treatment in 2013 as further
evidence of a demonstrated conflict of interest. 25 See Doc. 75 at 16-17. Plaintiff points to the
fact that her IgM levels when Oxford approved coverage for IVIG treatment in 2013 were almost
identical to when Dr. Lundblad denied it in 2011. See Doc. 75 at 17; compare Oxford 000372
(reporting Plaintiff’s IgM levels were at 42 mg/dl on November 30, 2011), with OHP 000011
(noting that Plaintiff’s IgM levels were at 46 mg/dl on January 11, 2013).
However, the letter Dr. Cuttner submitted on January 10, 2013 in connection with
Plaintiff’s 2013 claim contrasts sharply with the letter she sent in connection with Plaintiff’s
2011 request for continuation of coverage. In 2011, Dr. Cuttner’s letter stated that Plaintiff’s
pneumonia had been successfully treated with antibiotics, her gammaglobulin levels were
normal, and that it would be “important” for Plaintiff to continue with “prophylactic” Gamunex
treatment. P-00024. The 2011 letter does not conceivably suggest that Dr. Cuttner was
prescribing Gamunex in connection with any chemotherapy treatment that Plaintiff was

24

As Defendants note, Dr. Lundblad was only required to review the information Plaintiff and her physician
provided him with, which did not mention Rituxan. Doc. 79 at 11. “The Second Circuit has never found that
ERISA fiduciaries have a duty to gather information.” Young v. Hartford Life & Acc. Ins. Co., No. 09 Civ. 9811
(RJH), 2011 WL 4430859, at *11 (S.D.N.Y. Sept. 23, 2011) aff’d, 506 F. App’x 27 (2d Cir. 2012).

25
In his order to compel production of Plaintiff’s 2013 IAR, Magistrate Judge Francis reasoned that “if the reports
contain identical information as that before Dr. Lundblad in 2011, but only considered by a different Medical
Director, this may also support the inference that a conflict of interest affected the 2011 denial.” Doc. 59 at 12.
Alternatively, Judge Francis noted that “the requested reports may be a double-edged sword for the plaintiff, if they
support Oxford’s position that S.M.’s condition had changed enough to justify Gamunex coverage[.]” Id.

24

undergoing to treat her non-Hodgkins lymphoma. See id. Conversely, the letter Dr. Cuttner
submitted to Oxford in 2013 communicated a much greater sense of urgency, and, more
importantly, provided information that directly related to the suitability of the Gamunex
prescription at the time. It indicated that Plaintiff’s disease “recently transformed to a more
aggressive lymphoma, namely, diffuse B cell large cell lymphoma” and would be “receiving
combination chemotherapy . . . that will put her at risk of severe infections.” See Nguyen 2d.
Aff., Ex. A. Dr. Cuttner indicated that she felt “very strongly” that Plaintiff should receive IVIG
treatment to prevent infections while she was on chemotherapy. Id. Dr. Hui approved coverage,
citing the fact that Plaintiff was about to commence chemotherapy, though a different form of
chemotherapy than Rituxan, as one of the reasons justifying his determination. OHP 000011.
He also cited Plaintiff’s low IgG levels as an additional factor weighing in favor of approving
IVIG treatment in 2013. See OHP 000011; compare Oxford 000372 (reporting Plaintiff’s IgG
levels were at 716 mg/dl on November 30, 2011), with OHP 000011 (noting that Plaintiff’s IgM
levels were at 450 mg/dl on January 11, 2013).
It bears noting that Dr. Lundblad also granted Plaintiff an initial approval, which covered
three months of IVIG treatment, based on similar information. 26 See Oxford 000019.
Ultimately, Plaintiff’s 2013 IAR has indeed proved to be a double-edged sword, see supra n.25,
in that it tends to show that her condition deteriorated between the denial of coverage in
December 2011 and Oxford’s approval in January 2013.

26

After Dr. Hui’s initial approval, Plaintiff was denied an extension of coverage in July 2013, again for failure to
provide clinical information. See OHP 000011.

25

Dr. Lundblad’s Qualifications to Review the Claim
Plaintiff also claims Oxford deliberately assigned Dr. Lundblad to evaluate her claim
even though he was purportedly: (1) unqualified to make a medical necessity determination
about Gamunex; (2) not Dr. Cuttner’s clinical peer; (3) ignored the fact that Plaintiff’s condition
was life-threatening; and (4) failed to consult with oncologists made available to him by Oxford.
Doc. 75 at 11. However, the Court finds these allegations to be either inaccurate or insufficient
to support an inference that a conflict influenced Oxford’s reasonable interpretation of Plaintiff’s
claim. Regardless of Dr. Lundblad’s qualifications, his determination was affirmed by two other
physicians including an external reviewer who is indisputably Dr. Cuttner’s clinical peer. See
Oxford 000015, 0000122. Furthermore, Plaintiff has failed to introduce evidence showing that
such a decision was required to be undertaken by a reviewer with specialized credentials.
As to Plaintiff’s assertion that Dr. Lundblad was not a “clinical peer” and ignored
Plaintiff’s “life threatening” condition in violation of Oxford’s own policy, her argument is
premised on an erroneous interpretation of the Plan and a misapprehension of Dr. Lundblad’s
deposition testimony. See Doc. 75 at 11. The Plan provides that adverse medical necessity
determinations can only be made by a “clinical peer reviewer.” Oxford 000159. While Plaintiff
appears to interpret this term literally—i.e., that the reviewer be a clinical peer of the treating
doctor—the phrase is not defined by the Plan at the stage of an initial adverse determination.
Indeed, even at the internal appeal stage, a “clinical peer reviewer,” is—at most—a physician
with a current and valid non-restricted medical license. Oxford 000162. Even a non-physician
may review a member’s internal appeal, so long as that individual meets the separate applicable

26

criteria. Id. Only at the external appeal phase is a clinical peer reviewer necessarily defined as a
physician who has relevant medical expertise. Id. Although the Plan does not specify who
qualifies as a clinical peer reviewer at the initial review phase, Plaintiff’s claim that Dr.
Lundblad did not meet the Plan’s own specifications is unsubstantiated. Dr. Lundblad is a
doctor of osteopathic medicine and is board certified and licensed to practice medicine.
Lundblad Aff., Doc. 82 at ¶¶ 2-3. “ERISA and the applicable DOL regulations neither require a
plan administrator to rely only upon the opinions of specialists nor preclude a plan administrator
from relying on the opinions of physicians trained in internal or occupational medicine.”
Topalian v. Hartford Life Ins. Co., 945 F. Supp. 2d 294, 354 (E.D.N.Y. 2013). Repeatedly,
“courts have deemed it sufficient that doctors trained in internal medicine or occupational
medicine were retained to review the [p]laintiff’s records.” Id. (collecting cases). Plaintiff’s
argument that Dr. Lundblad “ignored” her life-threatening condition is unsupported by the
deposition testimony that she relies on. 27 Furthermore, Dr. Lundblad’s failure to consult with
Oxford’s oncologists is entitled to little weight, given his conversations with Plaintiff’s own
oncologist and the fact that a physician specializing in lymphoma and chemotherapy treatment
later affirmed his decision. See Oxford 000020, 000120-000124.

27
Plaintiff relies on a portion of Dr. Lundblad’s deposition testimony in which he responded to several hypothetical
questions posed by Plaintiff’s counsel, including what he would do if Dr. Cuttner told him, “I need you to approve
this because she might die if you deny it.” Doc. 75 at 14 (citing Berg. Decl., Ex. 9 at 51-54). Dr. Lundblad replied
that his determination, along with the policy which guides it, is based on medical literature and not on a plea from an
individual doctor. See Berg. Decl., Ex. 9 at 51-54. Furthermore, while he gathers information from the Provider,
there may be a difference of opinion. Id. More to the point, there is no evidence that Plaintiff’s claim for coverage
presented such a scenario. See id. at 54:12-14. In fact, Dr. Cuttner seemed to suggest that IVIG treatment was
merely precautionary, informing Oxford that “it would be important” for Plaintiff to continue “prophylactic,”
(emphasis added) treatment “through the winter months.” P-00024.

Plaintiff also points to the fact that Dr. Lundblad was purportedly unaware of Oxford’s urgent care policy. See Doc.
75 at 14. However, Oxford’s urgent care policy is separate from its policy concerning medical necessity
determinations and is not at issue in this case. Compare Oxford 000154-000155 (detailing Oxford’s urgent care
policy), with Oxford 000159-000160 (describing Oxford’s policy on medical necessity determinations).

27

Plaintiff contends that “Dr. Lundblad has never injected Gamunex, he did not know who
manufactured it, and he did not know when it received FDA approval.” Doc. 75 at 12 (citing
Berg. Decl. Ex. 9 at 19:3-7). She also notes that Dr. Lundblad “had no idea what S.M.’s IgM
levels were in September 2011, or even what the normal range of IgM levels are generally.” Id.
(citing Berg. Dec. Ex. 9 at 30:4-8). However, Plaintiff cites portions of Dr. Lundblad’s
deposition testimony that do not support these assertions. Dr. Lundblad simply stated that he
“did not recall” Plaintiff’s IgM levels prior to September 2011 and that he did not know the
normal range for IgM levels “off the top of [his] head.” See Berg. Decl. Ex. 9 at 19:3-7. Dr.
Lundblad also did not know who manufactures Gamunex “off the top of [his] head,” and
although he did not appear to know when it received FDA approval, such knowledge is not
particularly relevant to the reasonableness of his medical necessity determination. See Berg.
Decl. Ex. 9 at 19:3-7.
Finally, Plaintiff claims that Dr. Lundblad ignored the process that he was required to
follow, which purportedly compelled him to wait four to six weeks for S.M.’s clinical test results
reflecting her IgG and IgM levels without Gamunex, or temporarily denying coverage for four to
six weeks until further testing could be done. Doc. 75 at 18. Yet, Oxford’s second request for
additional information explicitly asked for “documentation of impaired antibody production to
specific antigens and history of recurrent infections.” 28 P-00041. The Plan itself indicates that
notification of Oxford’s decision that a service is not medically necessary when additional
information is requested will be provided within either: (1) two business days of their receipt of

28

The record discredits Plaintiff’s contention that Defendants did not ask Dr. Cuttner’s office for the information it
claims to always request as a matter of policy. See Doc. 84 at 5 (claiming that “on the contemporaneous record,
Oxford did not make such a broad demand on S.M. or Dr. Cuttner”). Oxford’s first request for documents, on
November 23, 2011, mirrors the information that Defendants maintain it is their policy to request. Compare Doc. 68
at 6, with P-00040, Oxford 000376. Oxford’s second inquiry reiterated the need for some of the information
contained in its first request. See P-00041.

28

the information; or (2) two business days from the expiration of the period allowed to provide the
information, i.e., forty-five days. Oxford 000159. Dr. Cuttner actually replied to Oxford’s
request for additional information within the requisite time period, however, her response did not
address Oxford’s specific requests. See Oxford 000363-000374. In any event, both the initial
denial and external appeal cited several other factors justifying Oxford’s decision. See Oxford
000093, 000124. Accordingly, Oxford’s failure to wait forty-five days to issue a determination
does not weigh in support of finding a conflict of interest.
C. Evidence Outside the Administrative Record 29
“The administrative record consists of the documents before the claims administrator
when the decision regarding benefits was made.” 30 Novick v. Metro. Life Ins. Co., 914 F. Supp.
2d 507, 521 (S.D.N.Y. 2012) (quoting Rund v. JPMorgan Chase Grp. Long Term Disability
Plan, No. 10 CIV. 5284 LAP, 2012 WL 1108003, at *1 (S.D.N.Y. Mar. 30, 2012)). In ERISA
cases applying the arbitrary and capricious standard of review, the Second Circuit has
“repeatedly said that a district court’s decision to admit evidence outside the administrative
record is discretionary, ‘but which discretion ought not to be exercised in the absence of good
cause.’” Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 631 (2d Cir. 2008) (quoting Juliano
v. Health Maint. Org. of New Jersey, Inc., 221 F.3d 279, 289 (2d Cir. 2000)). “Although a

29

As a procedural matter, “[a] motion to strike is the correct vehicle to challenge materials submitted in connection
with a summary judgment motion.” Pokorne v. Gary, 281 F. Supp. 2d 416, 418 (D. Conn. 2003) (internal citation
omitted); see e.g. Novick v. Metro. Life Ins. Co., 914 F. Supp. 2d 507, 521 (S.D.N.Y. 2012) (ERISA defendants
moved to strike what they claimed were improper extra-record submissions); Demonchaux, 2012 WL 6700017, at
*12 (same). Here, neither of the parties moved to strike any materials.

30
The Court notes that the administrative record, which Defendants submitted, was not organized in any logical
fashion and had to be reorganized with great difficulty by the Court. The administrative record, which consists of
several duplicative and barely legible documents, is presented in a semi-chronological form. Several of the bates
stamped numbers are cut off. Some pages are missing bates stamps altogether. Most frustrating, the various batesstamped records are grouped together in a non-sequential order.

29

Defendant’s demonstrated conflict of interest may be an example of good cause, a conflicted
administrator does not per se constitute good cause[.]” Wedge, 23 F. Supp. 3d at 337 (citing
Demonchaux, 2012 WL 6700017, at *11) (internal quotation marks omitted). The application of
such a per se rule would improperly “allow additional evidence to be presented at the district
court level in almost every circumstance on the basis of a presumed conflict of interest” and
“eliminate the appropriate incentive for a claimant to submit all available evidence regarding the
claimant’s condition to the insurance company upon first submitting a claim.” Locher v. Unum
Life Ins. Co. of Am., 389 F.3d 288, 295 (2d Cir. 2004). In effect, it would “undermine the
significant ERISA policy interests of minimizing costs of claim disputes and ensuring prompt
claims-resolution procedures.” Id.
Typically, district courts “have emphasized a plaintiff’s burden to allege facts, with
sufficient specificity, that would support the existence of ‘good cause’ permitting the admission
of additional evidence beyond the administrative record.” Krizek v. Cigna Grp. Ins., 345 F.3d
91, 98 n.2 (2d Cir. 2003) (citing Hotaling v. Teachers Ins. & Annuity Ass’n of Am., 62 F. Supp.
2d 731, 738 (N.D.N.Y. 1999)) (refusing to expand the administrative record where the plaintiff
“fail[ed] to allege, with any specificity, whether ‘good cause’ exists sufficient to permit the
introduction of additional evidence”). A court’s discretion “should not be exercised in cases
where a party fails to demonstrate, beyond mere speculation or conjecture, that the
‘administrative record is inadequate to conduct a proper review of the administrative decision.’”
Hotaling, 62 F. Supp. 2d at 738 (quoting DeFelice v. Am. Int’l Life Assur. Co. of New York, 112
F.3d 61, 65 (2d Cir. 1997)). Good cause may be found “when the procedures employed in
arriving at the claim determination were flawed, and when an insurer’s claimed reason for
denying a claim was not stated in its notices to the claimant.” Biomed Pharm., Inc. v. Oxford
30

Health Plans (N.Y.), Inc., 831 F. Supp. 2d 651, 658-59 (S.D.N.Y. 2011) (citing Locher, 389 F.3d
at 295). Such circumstances are not present here and, accordingly, the administrative record will
not be expanded.
Dr. Lundblad’s Deposition Testimony
Both parties operate under the erroneous assumption that this Court has already expanded
the administrative record to include Dr. Lundblad’s deposition testimony. 31 See Doc 79 at 7 n.4;
Pl.’s Reply, Doc. 86 at 8-9. Hr’g Tr. 13:16-20, Jan. 10, 2014. However, while the Court is
permitted to look beyond the administrative record to resolve such peripheral issues as alleged
conflicts of interest, it must establish good cause before considering such evidence in its
substantive analysis concerning the decision to deny benefits. At no point in time did this Court
find good cause to admit Dr. Lundblad’s testimony in connection with its direct review of
Defendants’ decision to deny benefits.
Plaintiff relies on Dr. Lundblad’s deposition testimony, as is appropriate, to support the
arguments which the Court has already rejected under its conflict of interest analysis. As
previously established, Plaintiff has failed to show that Oxford’s decision was tinged by a
conflict of interest, procedural irregularities, or case-specific bias. See supra Part III.B.i.
Meanwhile, Defendants appear to only use Dr. Lundblad’s deposition testimony to rebut
Plaintiff’s characterization of his responses to counsel’s questions. See e.g. Doc. 79 at 4-6, 1112. Therefore, there is not good cause to expand the scope of administrative record to include
Dr. Lundblad’s deposition testimony.

31

Their impression appears to be based on a statement made by this Court at a January 10, 2014 hearing indicating
that it did not see any reason why it would not consider Dr. Lundblad’s testimony on a motion for summary
judgment. See Hr’g Tr. 13:16-20, Jan. 10, 2014.

31

Rituxan Medication Guide and 2013 IAR
Plaintiff also seeks to introduce the Rituxan medication guide and Plaintiff’s 2013 IAR.
Doc. 86 at 8-9. The Rituxan information that Plaintiff seeks to introduce simply describes the
medication and its potential side effects. Berg. Decl., Ex. 19. It does not establish that Plaintiff
was being treated with Rituxan at the time or that she was experiencing a side effect. 32 More
importantly, it is not disputed that Dr. Lundblad was not informed by Dr. Cuttner that Plaintiff
was on Rituxan. The document is thus irrelevant on the facts of this case.
A similar analysis applies to Plaintiff’s 2013 IAR. The Court referenced the 2013 IAR in
connection with the conflict of interest analysis, as is allowed. As the Court previously
determined, the report itself, along with Dr. Cuttner’s associated submissions, establish that
Plaintiff’s medical condition declined between 2011 and 2013, justifying Oxford’s approval of
coverage for Gamunex two years later. See supra Part III.B.i.; see also OHP 000011; Nguyen
2d. Aff., Ex. A. Given the fact that the 2013 IAR does not evidence any major procedural
irregularities, the Court will not expand the administrative record to include it.
Medical Journal Articles
Plaintiff objects to the inclusion of three medical articles that Defendants seek to
introduce. 33 See Doc. 84 at 14-15. The external reviewer cited one of the articles in MCMC’s

32

Nonetheless, Defendants do not dispute that Plaintiff’s non-Hodgkins lymphoma has been treated with Rituxan at
various times since 2011. Doc. 80 at ¶ 4.
33

The article cited by MCMC was authored by Kanti R. Rai, MD and Michael J. Keating, MD, and was published in
Wolters Kluwer Health UpToDate. See Kapacinskas Aff. ¶ 7. The articles cited by Oxford’s policy on IVIG
coverage include an article written by Francisco A. Bonilla, MD, PhD et al. published in the Annals of Allergy,
Asthma & Immunology, and an article by Jordan S. Orange, MD, PhD et al published in the Journal of Allergy &
Clinical Immunology. See id. at ¶¶ 4, 6.

32

decision. See Oxford 000124. Oxford’s policy on IVIG coverage references the other two
papers in its bibliography. See P-00063. The article cited by the external reviewer concerns a
sub-type of non-Hodgkins lymphoma, which neither of the parties claim Plaintiff has been
diagnosed with. Given that Plaintiff does not challenge Oxford’s IVIG policy itself, there is no
need for the Court to consider the two articles cited in support of the policy. Therefore, the
Court will not consider any of the three medical journal articles that Defendants have
produced. 34

D. Denial of Benefits
i.

Oxford’s Denial of Coverage
The scope of review under the arbitrary and capricious standard is narrow. Celardo v.

GNY Auto. Dealers Health & Welfare Trust, 318 F.3d 142, 146 (2d Cir. 2003) (citing Peterson v.
Cont’l Cas. Co., 282 F.3d 112, 117 (2d Cir. 2002)). “[D]enials may be overturned . . . only if the
decision is ‘without reason, unsupported by substantial evidence or erroneous as a matter of
law.’” Fay, 287 F.3d at 104 (quoting Kinstler, 181 F.3d at 249). “Substantial evidence” is “such
evidence that a reasonable mind might accept as adequate to support the conclusion reached by
the [administrator and] . . . requires more than a scintilla but less than a preponderance.”
Celardo, 318 F.3d at 146 (quoting Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.
1995)) (internal quotation marks omitted). The Second Circuit has stressed that courts are “not

34

Defendants interpret Plaintiff’s papers as also asserting that the external reviewer’s decision denying Gamunex
coverage falls outside of the administrative record. See Defs.’ Reply, Doc. 87 at 7-8. As a preliminary matter, the
Court does not read Plaintiff’s brief as objecting to the inclusion of the external reviewer’s decision in the
administrative record. Rather, Plaintiff argues that Defendants’ alleged concealment of her 2011 IAR from the
external reviewer constitutes actionable conduct outside the scope of ERISA. Doc. 84 at 8-10. In any event, the
external review decision essentially embodied a final pronouncement on Plaintiff’s claim for coverage, which
conclusively ensured Oxford’s denial of benefits. The Court must give the external decision some consideration in
order to decide the present motions. “[T]he external appeal constitutes a part of the record informing Defendant’s
ultimate denial of benefits in this case.” Alexandra, 2013 WL 4002883, at *8.

33

free to substitute [their] own judgment for that of the [plan administrator] as if [they] were
considering the issue of eligibility anew.” Id. (quoting Pagan v. NYNEX Pension Plan, 52 F.3d
438, 442 (2d Cir. 1995)).
As noted, the Plan provides that Oxford has discretion to deny coverage for any health
care service that it determines, in its “sole judgment,” to not be medically necessary, as that term
is defined by the Plan. See Oxford 000228; see also Doc. 77 at ¶ 3. The Plan states that Oxford
may “adopt reasonable policies, procedures, rules, and interpretations to promote the orderly and
efficient administration [of the Plan] . . . with which Members shall comply.” Oxford 000227.
Courts have held that this exact “discretionary language” grants Oxford the right to establish
guidelines, such as the IVIG policy, to assist with benefits determinations. See Stern, 2013 WL
3762898, at *8 (citing Krauss, 517 F.3d at 622).
It is indisputable that Plaintiff and her oncologist failed to provide Oxford with the
information necessary for it to determine that she met the criteria. For an initial request for IVIG
treatment, Oxford’s IVIG policy states that the documentation required includes office notes
indicating the failure of conventional therapy and “clinically significant functional deficiency of
humoral immunity as evidenced by documented failure to provide antibodies to specific antigens
and a history of recurrent infections,” among other information. P-00050. For the continuation
of therapy, a member must submit additional information, including documentation of an
objective response to therapy and that “the medical condition under treatment has not fully
resolved[.]” Id.
Although Plaintiff questions whether she was initially granted coverage for Gamunex as
an “exception” to Oxford’s IVIG policy, see Doc. 77 at ¶ 32, Doc. 84 at 7, it appears clear that
34

Dr. Lundblad approved coverage of the treatment for three months in spite of the fact that the
documents submitted by Dr. Cuttner lacked information as to whether Plaintiff could make
antibodies against immunizations or common bacteria. See 000075. In his notes, Dr. Lundblad
specifically indicated that “[f]or renewal or continuation, additional clinical information will be
required.” 35 Oxford 000019. When Plaintiff requested an extension of coverage, Oxford sent
two requests for additional information. The first request asked for precisely the information
required for an extension of coverage by Oxford’s IVIG policy. See Oxford 000376; see also P00050. Oxford’s second request reiterated the need for information that the medical condition
under treatment had not fully resolved and documentation of an objective response to therapy.
P-00041. It also indicated that Oxford still needed “documentation of impaired antibody
production to specific antigens[.]” Id. Not only did Dr. Cuttner’s response lack this final piece
of information; nothing in administrative record indicates that either Plaintiff or her oncologist
specifically addressed or otherwise acknowledged the request. Therefore, it was not arbitrary
and capricious for Drs. Lundblad and Bahr to deny coverage based on the fact that Oxford had
not received the information it needed to make a determination.
Plaintiff maintains that Defendants fundamentally misunderstand the use of Gamunex in
non-Hodgkins lymphoma patients. In her briefing, she explains that, “[i]n cancer patients, the
injections are given precisely because the patient is unable to produce gammaglobulin naturally,
as the cancer patient’s immune system is, by definition, deficient.” Doc. 75 at 17-18. Plaintiff
believes that her claim was denied because IVIG treatment “does not cure the immune system

35

Plaintiff notes that Oxford’s September 22, 2011 letter advising her that coverage had been approved failed to
indicate that continuation would require additional clinical information. Doc. 77 at ¶ 22 (citing Oxford 000089).
However, the policy is clear that initial approvals are for a period of three months only, unless otherwise noted. P00050.

35

deficiency permanently[.]” Id. at 18. Consequently, she argues that requiring data regarding her
ability to produce functional antibodies in response to a vaccine challenge, is “nonsense” because
it requires a “miracle.” Id. However, Plaintiff appears to misapprehend the nature of the
information required under the policy. Under Oxford’s IVIG policy, a claimant must
demonstrate a documented “failure to produce antibodies to specific antigens.” See P-00050
(emphasis added); see also Oxford 000093. Plaintiff’s argument is premised on the erroneous
assumption that she was required to prove that she could produce antibodies in response to
antigens and is therefore based on a misreading of the policy.
Plaintiff further argues that the denial of benefits was arbitrary and capricious because
Defendants “ignored” the “life-threatening nature” of her condition, including her non-Hodgkins
lymphoma and chemotherapy treatment. Doc. 86 at 3. However, the materials Dr. Cuttner
submitted in connection with her request for continuation of coverage contained no indication
that she was prescribing Gamunex as part of Plaintiff’s cancer treatment or in an attempt to
mitigate any side-effects caused by Rituxan. See Oxford 000364-000374. Other than a
document containing the word “CHEMO” with “yes” circled next to it, the Court is unable to
discern whether Plaintiff was a cancer patient undergoing chemotherapy treatment at that point
in time. See id. Nothing in Dr. Cuttner’s letter to Oxford indicates that she was prescribing
Gamunex in connection with Plaintiff’s non-Hodgkin’s lymphoma or associated chemotherapy
treatment. See Oxford 000364.
Defendants point to several pieces of evidence in the administrative record adequate to
support Oxford’s conclusion that Gamunex was not medically necessary. First, Dr. Cuttner’s
letter informed Oxford that Plaintiff’s pneumonia was successfully treated with antibiotics.
Oxford 000364. Dr. Cuttner’s office notes, dated November 29, 2011, indicated that Plaintiff
36

“generally feels well,” “no shortness of breath,” “no chest pain,” “no muscle or joint pain,” “no
headache,” “no fever,” and, most importantly, “no infection.” Oxford 000373. All of Plaintiff’s
laboratory results reported on November 30, 2011 fell within the “normal” range, including her
IgG, IgM, and IgA levels. Oxford 000372. Furthermore, the fact that Dr. Cuttner characterized
her recommendation of IVIG treatment as “prophylactic,” suggests that the medical condition
under treatment had fully resolved. Oxford 000364. Given the foregoing information provided
by Dr. Cuttner, Oxford’s determination that Gamunex treatment was not medically necessary
was clearly based on substantial evidence.
ii.

The External Appeal
Defendants ask the Court to give the external reviewer’s decision to uphold Oxford’s

denial of benefits “substantial deference.” Doc. 68 at 19-20. In support of this argument,
Defendants cite a decision issued by a district court in the Southern District of Florida. Id. at 19.
In Alexandra H. v. Oxford Health Ins., Inc., the court determined that New York’s external
appeal law is not preempted by ERISA and that, given that the external review decision is
binding, it “requires a plan to divest its discretion in favor of the external reviewer’s decision.” 36

36

The New York law provides, in relevant part:
An insured . . . shall have the right to request an external appeal when:
(1)(A) the insured has had coverage of the health care service, which would
otherwise be a covered benefit under a subscriber contract or governmental health
benefit program, denied on appeal, in whole or in part, pursuant to title one of this
article on the grounds that such health care service does not meet the health care
plan's requirements for medical necessity, appropriateness, health care setting,
level of care, or effectiveness of a covered benefit, and
(B) the health care plan has rendered a final adverse determination with respect to
such health care service or both the plan and the insured have jointly agreed to
waive any internal appeal, or the insured is deemed to have exhausted or is not
required to complete any internal appeal[.]

N.Y. Ins. Law § 4910(b)(1).

37

No. 11 Civ. 23948, 2013 WL 4002883, at *8-9 (S.D. Fla. Aug. 6, 2013). In such situations, the
court reasoned that a de novo standard of review must apply. Id. The Court further concluded
that “its review . . . must be confined to whether Defendant complied with the external
reviewer’s decision.” Id. at *9. In other words, Defendants argue that the Court’s analysis
should be limited to determining whether it implemented the external reviewer’s decision. And
because Oxford complied with the external reviewer’s decision of coverage, a holding in favor of
Oxford would thus be compelled.
As a preliminary matter, the Court notes that the external reviewer’s decision to uphold
the denial of benefits was reasonable. 37 The external reviewer noted that, other than Plaintiff’s
two infections, there was no clear history of recurrent severe infections. Id. Furthermore, the
external reviewer observed that the decision was supported “by the lack of any evidence that this
patient has deficient humoral responses to vaccination.” Id. As a result, there was “insufficient
information” to establish that withholding IVIG treatment would clearly be detrimental or that
providing IVIG treatment would be health beneficial. Oxford 000124. In any event, the
outcome is the same regardless of whether the Court limits its review to Oxford’s initial
determination, or if it applies the de novo standard to determine whether Oxford complied with
the external reviewer’s decision.

37

In a separate section of Plaintiff’s motion for summary judgment, in which she accuses Defendants of fraudulent
concealment, Plaintiff notes that Oxford failed to submit her 2011 IAR to MCMC. Doc. 75 at 19. She also accuses
an Oxford representative of omitting the fact that Dr. Lundblad reversed his position on whether Gamunex should be
covered in September 2011, and that Plaintiff was being treated for non-Hodgkins lymphoma with Rituxan. Id.
at 20. However, the external reviewer’s decision was based on a failure to show a history of severe infections or
deficient humoral responses to vaccination, and Plaintiff does not establish that his decision would have been
impacted by the information. Furthermore, Plaintiff did not herself provide the purportedly missing information in
her external appeal application, which included various attachments detailing her medical history and
communication with Oxford, nor does she allege that she was prevented from doing so. See P-00001-00041.

38

E. Plaintiff’s Breach of Fiduciary Duty Claim
i. Source of Fiduciary Duty
A claim for breach of fiduciary duty under ERISA typically falls under 29 U.S.C.A.
§ 1104(a)(1)(B), which requires plan fiduciaries to discharge their duties “solely in the interest of
the participants and beneficiaries” and “with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with like aims.” ERISA
§ 1132(a)(1)(B) only allows for relief under the Plan’s terms as found by the court; “a court may
not ‘reform’ the plan or provide other equitable relief under this section.” Miller v. Int’l Paper
Co., No. 12 Civ. 7071 (LAK) (JLC), 2013 WL 3833038, at *3 (S.D.N.Y. July 24, 2013) (citing
CIGNA Corp. v. Amara, 131 S. Ct. 1866, 1876-77 (2011)). In contrast, ERISA § 502(a)(3)
allows a “participant, beneficiary, or fiduciary” to bring a civil action seeking “(A) to enjoin any
act or practice which violates any provision of [ERISA] or the terms of [a] [benefit] plan, or (B)
to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any
provisions of [ERISA] or the terms of [a] plan.” This provision has been interpreted as creating
a cause of action for claims that a fiduciary has violated ERISA by “providing false or
misleading information regarding benefits or . . . has failed to provide notices that are required
by statute.” Miller, 2013 WL 3833038, at *3 (internal citations omitted).
Plaintiff fails to identify the statutory basis that is the predicate for her breach of fiduciary
duty claim. The Amended Complaint merely asserts that “Defendants owed S.M. a fiduciary
duty in determining the medical necessity of S.M.’s treatment in accordance with the Plan” and
that they breached their fiduciary duties “by putting their own interests ahead of Plaintiff’s.”
Am. Compl. ¶ 47. In its prayer for relief, the Amended Complaint requests a “[d]eclaration that
Defendants have breached their fiduciary duties under the Plan by employing a sham appeal
39

process.” See Am. Compl. However, in her moving papers, Plaintiff asks the Court to either
allow her to proceed with a fraudulent concealment claim against Defendants or find that they
breached their fiduciary duty under ERISA by failing to provide the external reviewer with
Plaintiff’s 2011 IAR. Doc. 75 at 21. Plaintiff alleges that Williams, the Oxford employee who
prepared the materials submitted to the external reviewer, omitted and misrepresented several
pieces of information in her submissions to MCMC. Id. at 20. Plaintiff further requests the
Court to “reform the terms of the plan to require Oxford always to provide all Individual
Authorization Reports to external reviewers;” or to enjoin Defendants from excluding production
of the report to external reviewers. Besides the fact that this allegation was not contained in the
Amended Complaint, Plaintiff once again fails to point to any violation of ERISA or the Plan for
which she is seeking redress through this request.
ii. Available Remedies for Breach
“Injunctive relief is generally appropriate only when there is an inadequate remedy at law
and irreparable harm will result if the relief is not granted.” Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 103 (2d Cir. 2005). In order to obtain injunctive relief under ERISA § 1132(a)(3), a
plaintiff must show irreparable harm and the inadequacy of legal remedies. Id. (citing Ticor Title
Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir. 1999)). Here, as in Nechis, Plaintiff cannot satisfy
the conditions required for injunctive relief as any harm to her can be compensated by money
damages that would allow her to recover the value of benefits wrongly denied. In an affidavit
submitted to the Court, one of Plaintiff’s counsel of record states that “[f]rom December 2011 to
February 2012, S.M. was treated with 3 injections of Gamunex[,]” which she and her husband
paid for out-of-pocket. Matays Aff. ¶ 4. Plaintiff does not cite any damage that she suffered as a

40

result of discontinuing her Gamunex treatment in February 2012. 38 Indeed, almost all of the
remedies that Plaintiff seeks are compensatory in nature. 39 The Second Circuit has repeatedly
rejected “invitation[s] to perceive equitable clothing where the requested relief is nakedly
contractual.” Nechis, 421 F.3d at 104; see also Coan v. Kaufman, 457 F.3d 250, 264 (2d Cir.
2006) (the plaintiff’s request for an “injunction requiring the defendants to restore funds to the
defunct 401(k) plan to be distributed to former participants, ‘does not transform what is
effectively a money damages request into equitable relief.’”); Yoon v. Fordham Univ. Faculty,
173 F. App’x 936, 941 (2d Cir. 2006) (dismissing the plaintiff’s § 1132(a)(3) claims where his
“prayer for declaratory relief is merely a prelude to a claim for damages”).
The only arguably equitable relief that the Amended Complaint seeks consist of: (1) a
permanent injunction enjoining Defendants from denying Plaintiff from “learning the basis of,
including the identity and qualifications of, the doctors defendants rely on in reaching ‘not
medically necessary’ conclusions[;]” and (2) a declaratory judgment requiring Defendants to
“disclose the monetary relationship between Oxford/UnitedHealth and any private company
purporting to conduct an external appeal[.]” Am Compl. However, Plaintiff never claims that
Oxford denied her this information. Plaintiff was indeed provided with the basis for Oxford’s
medical necessity determination and informed of her right to obtain a copy of the clinical review
criteria free of charge in both of the letters she received from Oxford. See Oxford 000094-95,
000101-03. The first letter notifying Plaintiff of Oxford’s initial adverse determination provided

38

The Court further notes that, under Oxford’s IVIG policy, continuation of IVIG treatment will only be approved
for six months. P-00050.
39

Plaintiff requests a judgment ordering that Defendants pay all applicable medical benefits to which she is entitled,
fees related to their failure to timely provide information requested, in addition to attorney’s fees and litigation costs.
Am. Compl. She also asks for a declaration that Defendants violated her rights and the terms of the Plan by failing
to pay medical benefits and a permanent injunction enjoining Defendants from denying Plaintiff the right to receive
coverage of Gamunex. Id.

41

Dr. Lundblad’s name and phone number, indicating that if Plaintiff’s provider had any questions
regarding the decision, she could contact him. Oxford 000093. The second letter indicated that
the internal appeal review was conducted by a physician specializing in internal medicine.
Oxford 000101. Ultimately, “Oxford has no duty to disclose to plan participants information
additional to that required by ERISA.” Nechis, 421 F.3d at 102.
Plaintiff’s papers also demand “disgorgement from defendants of all ill-gotten gains, and
to prevent defendants’ unjust enrichment.” Doc. 75 at 23-24. Specifically, Plaintiff is seeking
restitution of her premium payments from December 2011 through December 2012 totaling
$71,607.68. Id. First, the Court has already determined that Oxford’s denial of coverage was
not arbitrary and capricious; there is, therefore, no factual basis for the claim. Second, in Nechis,
the Second Circuit determined that the plaintiff was not entitled to the disgorgement of premiums
she paid for health care coverage under § 502(a)(3) of ERISA. 421 F.3d at 103-104.
Putting Plaintiff’s demands for relief aside, Plaintiff has not shown that Oxford breached
its fiduciary duties to her at any point in time. “A fiduciary breaches his § 1104 duty to a plan
participant by preventing or interfering with the receipt of benefits to which the participant is
entitled.” Blatt v. Marshall & Lassman, 812 F.2d 810, 813 (2d Cir. 1987). The administrative
record supports the conclusion that Oxford conducted a thorough and fair review of Plaintiff’s
claim, which included various requests for additional information, phone calls with Plaintiff’s
provider, and an internal appeal that was ultimately upheld by an external reviewer. See P00040-41, Oxford 000019-21, 000124. As to Williams’ conduct, which is discussed more
thoroughly below, Plaintiff has failed to raise an inference of wrongful conduct, let alone fraud.
Nor does Plaintiff allege that Williams was performing anything other than a ministerial task
when she responded to MCMC’s request. “[A]llegations regarding the negligent and even the

42

intentionally poor performance of administrative tasks cannot suffice to constitute breaches of
fiduciary duties[.]” Forgione v. Gaglio, No. 13 Civ. 9061 (KPF), 2015 WL 718270, at *10
(S.D.N.Y. Feb. 13, 2015) (citing Bell v. Pfizer, Inc., 626 F.3d 66, 74 (2d Cir. 2010) (“Falling
outside these limits [of the term ‘fiduciary’] are plan employees who perform ministerial tasks
with respect to the plan, such as the application of rules determining eligibility for participation,
preparation of plan communication materials, the calculation of benefits, and the maintenance of
employee records.). “Finally, where a plaintiff asserts a breach of fiduciary [duty] claim based
on a material misrepresentation or omission, the plaintiff must establish detrimental reliance.”
Bell, 626 F.3d at 75 (citing King v. Pension Trust Fund of the Pension Hospitalization & Benefit
Plan of the Elec. Indus., 131 F. App’x 740, 742 (2d Cir. 2005)). As explained below, Plaintiff
has failed to allege or show detrimental reliance. This, in addition to the fact that Plaintiff does
not seek appropriate equitable relief under § 1132(a)(3), justifies dismissal of any breach of
fiduciary duty claims that Plaintiff is attempting to assert.

F. Plaintiff’s Motion to Sever
Plaintiff asks the Court to sever her claims for fraudulent concealment, empanel a jury,
and hold a trial. Doc. 75 at 21. However, the Amended Complaint makes no mention of a
fraudulent concealment claim, which Plaintiff raises solely in her moving papers. On January
10, 2012, MCMC submitted a request to Oxford for “all relevant medical records and treatment
information” in Oxford’s possession. 40 Berg Decl., Ex. 12. Plaintiff’s fraudulent concealment

40

Plaintiff maintains that this request included the following:
Complete history, physical examination, laboratory assessment indicating the
patient’s performance status (eg, liver renal, pulmonary hemopoietic functioning),
and, if applicable, results of pre-transplant evaluation including, for eg, MUGA
and pulmonary function tests.

43

allegations are based on Williams’ response to MCMC’s request for documents. Doc. 75 at 19.
Specifically, Plaintiff asserts that, in a letter responding to MCMC, Williams “made a series of
false representations and omissions” consisting of the following:
(1) omi[ssion] [of] the fact that Dr. Lundblad denied coverage on
September 16, 2011, then changed his mind after speaking to Dr.
Cuttner on September 21, 2011, then changed his mind again on
September 22, 2011, limiting coverage for three months, then
changed his mind for the final time in denying coverage on
December 7, 2011; (2) affirmatively misrepresent[ing] that the
coverage of Gamunex . . . was because of ‘an exception for life
threatening pneumonia,’ a notation that appears nowhere in the
contemporaneous evidence; (3) [failure] to disclose the fact that
S.M. was being treated for non-Hodgkins lymphoma with Rituxan;
and (4) misrepresent[ing] the length of time that Dr. Cuttner
requested coverage of Gamunex for S.M., unilaterally reducing Dr.
Cuttner’s request for coverage for one year to three weeks.
Doc. 75 at 20. Plaintiff also notes that Oxford’s submission failed to include her 2011 IAR. Id.
at 19. Defendants argue that Plaintiff is attempting to “assert a fraud claim on summary
judgment and circumvent Rules 15(a) and 9(b) of the Federal Rules of Civil Procedure.” Doc.
87 at 9-10. They further contend that Plaintiff’s fraudulent concealment claim is preempted by
ERISA. Doc. 79 at 23.
There are three independent bases to deny Plaintiff’s request. First, Plaintiff’s motion
must be denied because the court has already determined that, to the extent Plaintiff “only
challenges a medical necessity determination that was required under the terms of an ERISAregulated plan,” her claims are preempted because Defendants’ “actions implicate no other

Summary of the course of the illness, with the date of all surgical and other
procedures (eg, chemotherapy, radiotherapy) and other relevant therapeutic
interventions (eg, drugs), and patient’s subsequent course, including
substantiation of providers’ claims of patient responses to prior interventions.
See Doc. 75 at 19. However, the exhibit Plaintiff cites, which consists of MCMC’s request for information, fails to
include this quoted language. See Berg. Decl., Ex. 12.

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independent legal duty.” 41 Doc. 25 at 10. Although Plaintiff’s original complaint did not allege
the conduct that forms the basis for her fraudulent concealment challenge, it did accuse
Defendants of fraud, deceptive trade practices, and unjust enrichment. See Defs.’ Notice
Removal, Ex. A, Doc. 1 at ¶¶ 48-51. In determining that Plaintiff’s causes of action were
preempted by ERISA, the court stated “[w]hether S.M.’s claim is framed as one for fraud, for
deceptive trade practice, or for unjust enrichment, her claim turns on Oxford’s determination that
Gamunex was ‘not medically necessary’ and constitutes a claim ‘to recover benefits due’ under
Section 502(a)(1)(B).” Doc. 25 at 8.
Plaintiff’s motion to sever may also be denied on the basis that she did not allege a
fraudulent concealment claim in the Amended Complaint. Nor will the Court sua sponte grant
Plaintiff leave to amend where she has not requested it. 42 First, Plaintiff has failed to provide the
Court or Defendants with a proposed amended complaint. “It is well-settled that when seeking
leave to amend, the movant must submit ‘a complete copy of the proposed amended complaint
. . . so that both the Court and the opposing party can understand the exact changes sought.”
Akran v. United States, 997 F. Supp. 2d 197, 207 (E.D.N.Y.) aff’d, 581 F. App’x 46 (2d Cir.
2014) (quoting La Barbera v. Ferran Enterprises, Inc., No. 06 Civ. 2678, 2009 WL 367611, at
*3 (E.D.N.Y. Feb. 10, 2009)). Plaintiff’s papers do not cure this defect.

41

Furthermore, the court noted that Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002)—in which the
Supreme Court found that claims brought under an Illinois statute similar to New York Public Health Law § 4910
were not preempted by ERISA—“has no application here.” Doc. 25 at 10 n.7. It found that, “unlike the plaintiff in
Rush, who sued to compel compliance with an Illinois statute [. . .], S.M.’s complaint does not allege a violation of,
or even mention, New York Public Health Law Section 4910.” Id.
42

In its March 21, 2013 Order, the Court reminded Plaintiff that “[a]ny request for leave to amend is to be made by
motion, in compliance with Federal Rule of Civil Procedure 15(a)(2).” Doc. 25 at 10 n.8. On January 10, 2014,
Plaintiff requested leave to revise the Amended Complaint to add allegations as to why she believes there is good
cause to consider evidence outside of the administrative record. Hr’g Tr. 9:22-23, Jan. 10, 2014. The Court denied
Plaintiff leave to amend upon determining that she was not “alleging any new claim.” Id. at 10:21-22, 13:11-13.
During the hearing, Plaintiff provided no indication that she was seeking to add a fraudulent concealment claim.

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Finally, to the extent the basis for the proposed claim is contained in Plaintiff’s summary
judgment papers, it is evident that her allegations are insufficient to state a claim. Under Federal
Rule of Civil Procedure 9(b), claims for fraud, including claims for fraudulent concealment, must
“state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b).
Under New York law, which Plaintiff invokes, fraudulent concealment requires proof of: “(1)
failure to discharge a duty to disclose; (2) intention to defraud, or scienter; (3) reliance; and (4)
damages.” Ferring B.V. v. Allergan, Inc., 932 F. Supp. 2d 493, 511 (S.D.N.Y. 2013)
reconsideration denied, No. 12 Civ. 2650 (RWS), 2013 WL 4082930 (S.D.N.Y. Aug. 7, 2013)
(quoting TVT Records v. Island Def Jam Music Grp., 412 F.3d 82, 91 (2d Cir. 2005)). In her
papers, Plaintiff has failed to adequately allege reliance or damages. She provides no indication
that either she or MCMC reasonably relied on Defendants’ alleged misrepresentations and
omissions.43 Nor does Plaintiff allege that she suffered losses that were a “direct, immediate,
and proximate result of the misrepresentation” and independent of other causes. Warren v. John
Wiley & Sons, Inc., 952 F. Supp. 2d 610, 623 (S.D.N.Y. 2013) (quoting Kregos v. Associated
Press, 3 F.3d 656, 665 (2d Cir. 1993)). The fact that external reviewer’s final determination did
not rely on Williams’ alleged misrepresentations or allude to the absence of information that
would have been found in the 2011 IAR cuts against the presence of these last two factors.
Instead, the decision of the external reviewer was based on an absence of a “clear history of
recurrent severe or life threatening infections” and “the lack of any evidence that this patient has
deficient humoral responses to vaccinations.” Oxford 000124. The purportedly omitted
information would not have compelled a different result.

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There is also “confusion in the federal courts” as to whether a third-party’s reliance upon a misrepresentation by a
defendant, which results in injury to a plaintiff, is sufficient to satisfy the reliance requirement. See Prestige Builder
& Mgmt. LLC v. Safeco Ins. Co. of Am., 896 F. Supp. 2d 198, 203-205 (E.D.N.Y. 2012).

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Plaintiff’s characterization of Williams’ submission to the external reviewer as
“fraudulent” is meritless. As a preliminary matter, Plaintiff fails to cite any authority for the
proposition that Oxford was required to provide the IAR. Plaintiff’s claim that Williams’
representation that coverage was approved for three months as an exception “appears nowhere in
the contemporaneous evidence” is inaccurate. On December 7, 2011, Dr. Lundblad wrote in
Plaintiff’s IAR, “[p]reviously approved for 3 months as an exception in the setting of a life
threatening pneumonia.” Oxford 000020. The only apparent reason for Plaintiff contesting this
statement is because Oxford did not directly inform her that it was granting coverage as an
exception to its policy. That in itself does not make Williams’ statement misleading or untrue.
The fact that Plaintiff’s own doctor did not cite her Rituxan treatment as a justification for
prescribing Gamunex casts further doubt on the implication that Williams actively concealed the
fact that Plaintiff underwent Rituxan therapy. Lastly, the external reviewer stated that he had
sufficient information to make a determination. Oxford 000123.
Plaintiff’s motion to sever is denied.

G. ERISA Penalties
ERISA § 502(c) provides:
(1) Any administrator . . . (B) who fails or refuses to comply with a
request for any information which such administrator is required by
this subchapter to furnish to a participant or beneficiary . . . by
mailing the material requested to the last known address of the
requesting participant or beneficiary within 30 days after such
request may in the court’s discretion be personally liable to such
participant or beneficiary in the amount of up to $100 a day from
the date of such failure or refusal, and the court may in its discretion
order such other relief as it deems proper.
29 U.S.C. § 1132(c) (emphasis added).

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The Amended Complaint states that Defendants “failed or refused” to respond to
Plaintiff’s January 10, 2012 letter requesting information in a timely manner. Am. Compl. at
¶ 43(c). Plaintiff’s January 10, 2012 letter asked Oxford to produce certain records, including
“all notes or other instruments prepared” by the reviewing physicians and “any and all materials
that the previously referenced physician[s] relied upon” in analyzing Plaintiff’s request for
coverage. P-00042. Plaintiff’s papers clarify that Defendants failed to timely produce the
following items: (1) Dr. Lundblad’s receipt of Dr. Cuttner’s December 2011 facsimile; (2) the
complete file of the information Williams submitted to MCMC; and (3) five IARs. Doc. 86 at
15. Plaintiff indicates that Defendants finally produced (1) the 2011 facsimile on December 13,
2013, (2) the file Williams submitted on December 12, 2013, and (3) one of the IARs on April 1,
2014. Id. Plaintiff also objects to the fact that Defendants have introduced the three medical
journal articles as part of the administrative record after Plaintiff demanded that they confirm
that the entire administrative record had been produced on December 12, 2013. Id.
Consequently, Plaintiff calculates statutory penalties totaling $79,500. Id.
Plaintiff has not demonstrated that she is entitled to penalties under 29 U.S.C. § 1132(c).
In determining whether Plaintiff is entitled to a statutory award, the Court may consider whether
Plaintiff was prejudiced by Oxford’s alleged failure to respond. See Grohowski v. U.E. Sys.,
Inc., 917 F. Supp. 258, 261 (S.D.N.Y. 1996). It may also consider other factors, including bad
faith or intentional conduct on the part of defendant and the length of the delay. Ginsberg v.
Valhalla Anesthesia Associates, P.C., 971 F. Supp. 144, 149 (S.D.N.Y. 1997) (citing Pagovich v.
Moskowitz, 865 F. Supp. 130, 137 (S.D.N.Y. 1994)). Plaintiff fails to cite a single provision of
ERISA that requires Defendants to produce the information she cites as the basis for penalties
under the statute. She does not claim she has suffered prejudice, nor has she shown bad faith or

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intentional conduct. Plaintiff’s request for penalties under 29 U.S.C. § 1132(c) is therefore
denied.

H. Attorney’s Fees
A plaintiff’s request for attorney’s fees in an ERISA action is governed by 29 U.S.C.
§ 1132(g)(1), which provides: “[i]n any action under this subchapter . . . the court in its
discretion may allow a reasonable attorney’s fee and costs of action to either party.” An ERISA
plaintiff “must show ‘some degree of success on the merits’ before a court may award attorney’s
fees under § 1132(g)(1)[.]” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010)
(quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 680 (1983)). “A claimant does not satisfy
that requirement by achieving ‘trivial success on the merits’ or a ‘purely procedural victor[y],’
but does satisfy it if the court can fairly call the outcome of the litigation some success on the
merits without conducting a ‘lengthy inquir[y] into the question whether a particular party’s
success was ‘substantial’ or occurred on a ‘central issue.’” Id. (quoting Ruckelshaus, 463 U.S. at
688 n.9).
Plaintiff has not achieved any success on the merits. Therefore, she is not entitled to
attorney’s fees or costs.

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