Weinberg v. Solil Management LLC Plan et al

Filing 32

OPINION AND ORDER: Accordingly, no later than November 14, 2018, defendant is to produce to plaintiff's counsel a statement of each Reviewing Physician's income from Unum for the year in which each reviewed plaintiff's medical records and the preceding year and the curriculum vitae of each of the Reviewing Physicians. In all other respects, defendant's objections to plaintiff's discovery requests are sustained. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 11/6/2018) Copies Transmitted By Chambers. (ne)

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MICHELE WEINBERG,
Plaintiff,

17 Civ. 8976 (RA) (HBP)
OPINION
AND ORDER

-againstUNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant.

-----------------------------------x
PITMAN, United States Magistrate Judge:
This is an action brought under Section 502(a) (1) (B) of
the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C.

§ 1132(a) (1) (B) challenging the defendant's denial of long-term

disability benefits.

Until May 2016, plaintiff was employed as a

vice president of residential property leasing by Solil Management LLC.

Her occupational duties included overseeing the day-

to-day operations of approximately 4,500 apartment units, overseeing the policies, procedures and executions of all new and
renewal leases, reviewing apartment applications and credit
evaluations and updating vacancy lists.

She alleges that she

stopped working in that year due to lumbar and hip pain that
limited her ability to sit, stand and walk.
Plaintiff applied for disability benefits under a
contract of insurance issued by defendant Unum Life Insurance
Company of America, Inc.

According to plaintiff, she initially

received short-term disability benefits from her employer's
Employee Welfare Benefit Plan.

After the expiration of a 26-week

elimination period, she applied for long-term disability benefits.

She received long-term benefits for two days, and was then

denied further benefits by Unum.
The parties have stipulated that Unum's decision to
deny long-term benefits is subject to de novo review.
The current dispute arises out of discovery requests
served by plaintiff seeking information concerning the physicians
employed by Unum to review plaintiff's medical records (the
"Reviewing Physicians").

Specifically, plaintiff has served

interrogatories and document requests aimed at learning how long
the Reviewing Physicians have been affiliated with Unum, how much
they are paid, whether they participate in any kind of profitsharing or bonus plan, whether they have received any commendations or awards from Unum or whether Unum has ever subjected them
to any kind of corrective action.

Plaintiff also seeks the

production of any documents concerning how Unum evaluates claims
of pain, minimum levels of pathology and patient improvement and
any training material provided to the Reviewing Physicians.
At oral argument, counsel for Unum made several factual
representations that are relevant to the present dispute.
According to counsel, the Reviewing Physicians are salaried
employees of Unum whose income does not vary with the number of

2

files they review or the nature of their conclusions.

Counsel

also represented that the Reviewing Physicians do not participate
in any bonus or profit sharing plan, nor are they given any
training materials beyond the claims manual, which has already
been produced to plaintiff.

They have not received any commenda-

tions or been subject to any corrective action.

Finally, counsel

advised that the Reviewing Physicians render medical opinions
only; they do not decide whether a claimant meets the standard
required to receive long-term disability benefits. 1
Judges in this Circuit have reached different conclusions concerning discovery in ERISA actions in which the administrator's decision is subject to de novo review.

Some have

permitted discovery, some have denied discovery and some have
permitted limited discovery.
Co., 17 Civ. 4260
May 8, 2018)

See N'Diaye v. Metro. Life Ins.

(GBD) (BCM), 2018 WL 2316335 at *5-*6 (S.D.N.Y.

(Moses, M.J.)

(collecting cases); Liyan He v. Cigna

Life Ins. Co., 304 F.R.D. 186, 189 (S.D.N.Y. 2015)
M.J.)

(collecting cases).

(Gorenstein,

The reason usually offered (and the

principal reason offered here) for denying discovery is the
nature of the review performed by the court in an action brought
under Section 502.

1

Both sides are represented by counsel who are exceptionally
skilled and exceptionally knowledgeable concerning ERISA.
I am
certain that if any representations at oral argument by either
side were inaccurate, the responsible party would correct the
record.
3

[W]hen reviewing claim denials, whether under the
arbitrary and capricious or de novo standards of review, district courts typically limit their review to
the administrative record before the plan at the time
it denied the claim.
See, ~.g., DeFelice v. Am. Int'l
Life Assurance Co., 112 F.3d 61, 66-67 (2d Cir. 1997)
In DeFelice, however, we noted that "the decision
whether to admit additional evidence is one which is
discretionary with the district court, but which discretion ought not to be exercised in the absence of
good cause." Id. at 66.
Halo v. Yale Health Plan, 819 F.3d 42, 60 (2d Cir. 2016).
Unum has also argued here that the discovery sought
should not be permitted because it does not fit within the
definition of "relevant" evidence set out in 29 C.F.R. 2560.503l(m)(8). 2

2

29 C.F.R. 2560.503-l(m) (8) provides:
(8) A document, record, or other information shall be
considered "relevant" to a claimant's claim if such
document, record, or other information
(i) Was relied upon in making the benefit
determination;
(ii) Was submitted, considered, or generated in
the course of making the benefit determination,
without regard to whether such document, record,
or other information was relied upon in making the
benefit determination;
(iii) Demonstrates compliance with the
administrative processes and safeguards required
pursuant to paragraph (b) (5) of this section in
making the benefit determination; or
(iv) In the case of a group health plan or a plan
providing disability benefits, constitutes a
statement of policy or guidance with respect to
the plan concerning the denied treatment option or
(continued ... )
4

Even after the December 2015 amendments to the Federal
Rules of Civil Procedure, relevance for the purposes of discovery
is broader than relevance for the purposes of admissibility.
Relevance is a matter of degree, and the standard is applied more
liberally in discovery than it is at trial.

11

'

[I] t

is well

established that relevance for the purpose of discovery is
broader in scope than relevance for the purpose of the trial
itself.

111

Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., 13

Civ. 1654 (RA) (HBP), 2014 WL 5420225 at *7 (S.D.N.Y. Oct. 24,
2014)

(Pitman, M.J.)

(brackets in original), quoting Arch

Assocs., Inc. v. HuAmerica Int'l, Inc., 93 Civ. 2168
WL 30487 at *l (S.D.N.Y. Jan. 28, 1994)

(PKL), 1994

(Leisure, D.J.); see

Walker v. City of New York, 14-CV-680 (WFK) (PK), 2018 WL 1686102
at *2 (E.D.N.Y. Mar. 30, 2018); Degulis v. LXR Biotechnology,
Inc., 176 F.R.D. 123, 125 (S.D.N.Y. 1997)

(Sweet, D.J.); Quaker

Chair Corp. v. Litton Bus. Sys., Inc., 71 F.R.D. 527, 530-31
(S.D.N.Y. 1976)

(Motley, D.J.).

It is also fundamental that

"[i]nformation within th[e] scope of discovery need not be
admissible in evidence to be discoverable."
26(b) (1).

Fed.R.Civ.P

Thus, although the scope of the information that can

be considered by a court in resolving a Section 502 action is

2

( •••

continued)
benefit for the claimant's diagnosis, without
regard to whether such advice or statement was
relied upon in making the benefit determination.
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material to assessing a request for discovery, admissibility
should not be the touchstone for resolving such requests.
Nor is 29 C.F.R.

§

2560.503-l(m) (8) controlling.

By

its terms, the definition set forth in the regulation is limited
to the regulation itself.
tions.

29 C.F.R. § 2560.503-l(m)

("Defini-

The following terms shall have the meaning ascribed to

such terms in this paragraph (m) whenever such term is used in
this section

11

(emphasis added)).

The term "relevant" is

only used in the regulation to describe the scope of the information that an administrator must provide to a claimant.
§

2560. 503-1 (g) (1) (vii) (D),

(h) (2) (iii),

(j) (3)

29 C.F.R.

and (o)

On its

face, the regulation does not purport to supplant Fed.R.Civ.P.
26(b) (1)

in an action brought in a United States District Court

pursuant to Section 502.
Nevertheless, the limited range of information that can
be considered in resolving this action, the multitude of cases
limiting discovery in Section 502 actions by requiring that a
plaintiff show a reasonable chance that the discovery will
satisfy the good cause requirement, ~.g. Garban v. Cigna Life
Ins. Co., 10 Civ. 5770

(JGK) (RLE), 2011 WL 3586070 at *2

(S.D.N.Y. Aug. 11, 2011)

(Ellis, M.J.), and the "significant

ERISA policy interests of minimizing costs of claim disputes and
ensuring prompt claims-resolution procedures," Locher v. Unum
Life Ins. Co., 389 F.3d 288, 295 (2d Cir. 2004), compel the

6

conclusion that the full range of discovery permitted in most
civil actions is not appropriate here.
Several of plaintiff's discovery disputes have been
mooted by defense counsel's statements at oral argument.

The

Reviewing Physicians do not receive any type of bonus, nor are
they given instructions concerning how to evaluate a claimant's
medical records.

They are not given commendations by Unum.

Thus, to the extent plaintiff is seeking discovery regarding
these areas, there is nothing to produce.
However, a few of the areas plaintiff seeks to explore
are not moot and are relevant.

To resolve this action, the

District Judge will have to review the administrative record,
which presumably contains conflicting medical reports, and make a
de novo determination of whether plaintiff meets the policy
standards for an award of long-term disability benefits.

To make

her decision, the Judge will, in all probability, have to determine the weight to be given to the medical evidence, and she will
have to make this determination without the benefit of crossexamination or the ability to observe the physicians' demeanor.
Discovery that will assist the Judge in making this determination
will be helpful.

The District Judge's task is similar to the

function a jury performs in any trial in which a party's physical
condition is in issue and medical evidence is offered.

To aid

jurors in this task, Rule 26(a) (2) (B) requires that certain

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disclosures concerning medical (and other) experts be made,
including a statement of his or her qualifications and the
compensation he or she is receiving.

Although there is no litmus

test for assessing a physician's opinion, his or her experience,
specialties and board certifications are all relevant to the
assessment.

Similarly, in the unlikely event that Unum pays the

Reviewing Physicians exorbitant salaries, that fact would also be
relevant to an assessment of their opinions.

I conclude that

permitting discovery of these two areas will aid the District
Judge in resolving this matter and will not give rise to any
significant cost or delay and is appropriate here.
Accordingly, no later than November 14, 2018, defendant
is to produce to plaintiff's counsel a statement of each Reviewing Physician's income from Unum for the year in which each
reviewed plaintiff's medical records and the preceding year and
the curriculum vitae of each of the Reviewing Physicians.

In all

other respects, defendant's objections to plaintiff's discovery
requests are sustained.
Dated:

New York, New York
November 6, 2018
SO ORDERED

HEZ/-;;;:;;r / ~
United States Magistrate Judge

Copies transmitted to:
All Counsel
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