Malenski v. Standard Insurance Company

Filing 24

OPINION AND ORDER by Magistrate Judge Steven P. Shreder overruling 13 Plaintiff's Objections to Defendant's Proposed Joint Submission of Administrative Record and denying 16 Plaintiff's Motion to Expand Administrative Record and Disclosure (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MICHAEL MALENSKI,

Plaintiff,
v.
STANDARD INSURANCE
COMPANY,
Defendant.

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Case No. CIV-11-408-SPS

OPINION AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS TO SUBMISSION OF THE ADMINISTRATIVE
RECORD AND DENYING PLAINTIFF’S MOTION TO EXPAND SAME
This is an action for benefits under the Employee Retirement Income Security Act
of 1974, 29 U.S.C. §§ 1001-1461 (“ERISA”). The Plaintiff challenges the Submission of
Administrative Record [Docket No. 14] by the Defendant in two respects: (i) Plaintiff’s
Objections to Defendant’s Proposed Joint Submission of Administrative Record [Docket
No. 13]; and, (ii) Motion to Expand Administrative Record and Disclosure [Docket No.
16]. As set forth below, the Court finds that the objections should be overruled and the
motion to expand should be denied.
a. Objections to the Submission of Administrative Record
The Plaintiff objects to certain exhibits in the administrative record on evidentiary
grounds, e. g., (i) relevance under Fed. R. Evid. 803 (probably Rule 402); (ii) hearsay
under Rule 803; and, (iii) prejudice under Rule 403. The Defendant contends that the
Federal Rules of Evidence do not apply to an ERISA claim for two reasons: (i) a plan

administrator “is not a court of law and is not bound by the rules of evidence[,]” Speciale
v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 622 n. 4 (7th Cir. 2008); Bressmer v.
Federal Express Corp., 213 F.3d 625, 625 (2nd Cir. 2000); and, (ii) the Court reviews the
administrative record actually considered by the plan administrator, including exhibits
ordinarily be excluded under the Federal Rules of Evidence.

Black v. Long Term

Disability Insurance, 582 F.3d 738, 746, n. 3 (7th Cir. 2009) (“The Federal Rules of
Evidence, however, do not apply to an ERISA administrator’s benefits determination, and
we review the entire administrative record, including hearsay evidence relied upon by the
administrator.”), citing Speciale, 538 F.3d at 622, n. 4.

The Court agrees, and

accordingly the Plaintiff’s Objections to Defendant’s Proposed Joint Submission of
Administrative Record [Docket No. 13] are hereby OVERRULED.
b. Plaintiff’s Motion to Expand Administrative Record and Disclosure
The Plaintiff also seeks to expand the administrative record with more exhibits: (i)
an affidavit by the Plaintiff (the beneficiary under the plan) relating his knowledge of the
illness and death of the insured; (ii) an affidavit by the insured’s mother refuting a note
made by an emergency room doctor; and, (iii) a medical opinion by Dr. Dala R. Jarolim,
M.D., F.A.C.P. disputing the insured’s cause of death. The Plaintiff argues that he has
met the requirements for supplementing the administrative record: (i) that the evidence is
necessary; (ii) that the evidence could not have been presented to the administrator at the
time it made its decision; (iii) that the evidence is not cumulative or repetitive; and, (iv)
that the evidence is not merely “better evidence” than the beneficiary was able to present

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during the claim review process. See Hall v. Unum Life Insurance Company of America,
300 F.3d 1197, 1203 (10th Cir. 2002). The Court does not agree.
First, the requirements cited by the Plaintiff for supplementing the administrative
record apply only in cases in which de novo review is appropriate. Here, the parties seem
to agree that the applicable standard is “arbitrary and capricious,” which limits the Court
to considering the record on which the plan administrator based its decision. Hall, 300
F.3d at 1201 (“[I]n reviewing a plan administrator’s decision for abuse of discretion, the
federal courts are limited to the ‘administrative record’- the materials compiled by the
administrator in the course of making his decision.”), citing Sandoval v. Aetna Life and
Casualty Insurance Company, 967 F.2d 377, 380-81 (10th Cir. 1992); Woolsey v. Marion
Laboratories, Inc., 934 F.2d 1452, 1460 (10th Cir. 1991). See also Geddes v. United
Staffing Alliance Employee Medical Plan, 469 F.3d 919, 928 (10th Cir. 2006) (indicating
that the Court is permitted to “consider only evidence from the closed administrative
record.”). This is especially true when additional evidence would relate to questions of
eligibility for benefits. Murphy v. Deloitte & Touche Group Insurance Plan, 619 F.3d
1151, 1162 (10th Cir. 2010); Sandoval, 967 F.2d at 381 (“In effect a curtain falls when
the fiduciary completes its review, and for purposes of determining if substantial
evidence supported the decision, the district court must evaluate the record as it was at
the time of the decision.”). Simply put, a plan participant is not entitled to a second
chance to prove that he is entitled to benefits.
Sandoval, 967 F.2d at 381.

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Murphy, 619 F.3d at 1159, citing

Second, assuming arguendo that de novo review were the appropriate standard in
this case, “ERISA policy strongly disfavors expanding the record beyond that which was
available to the plan administrator.” Murphy, 619 F.3d at 1159 n. 4, quoting Jewell v. Life
Insurance Company of North America, 508 F.3d 1303, 1309 (10th Cir. 2007). And the
Plaintiff has not shown that the additional evidence he proffers satisfies all of the Hall
requirements. See Jewell, 508 F.3d at 1309 (“A party seeking to introduce evidence from
outside the administrative record bears a significant burden in establishing that he may do
so.”). For example, the Plaintiff has made no showing that the additional evidence could
not have been presented to the plan administrator prior to its decision; the Plaintiff clearly
could have presented evidence during the administrative process, see, e. g., Docket No.
14, STND 11-00843-00147 (“If you request a review, you will have the right to submit
additional information in connection with your claim. For example, if you can provide us
with medical documentation that Mrs. Malenski’s existing Sickness did not cause or
contribute to her death, we will review the claim again.”), and there is nothing to suggest
the affidavits now offered by the Plaintiff (two of which are from the Plaintiff himself
and his mother-in-law) were unavailable at the time of the administrative process.
The Plaintiff suggests that the evidence he seeks to include in the administrative
record relates to a potential conflict of interest. However, the Court cannot see how the
additional evidence offered by the Plaintiff speaks to any potential conflict of interest or
otherwise assists in understanding whether or to what extent a conflict of interest actually
exists, e. g., evidence of a plan administrator’s financial interest in a claim. See Murphy,
619 F.3d at 1163. In any event, additional evidence is not always necessary for a court to

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consider the impact of a conflict of interest on the eventual decision on a claim. Id. at
1163-64 (“[A] district court may be able to evaluate the effect of a conflict of interest on
an administrator by examining the thoroughness of the administrator’s review, which can
be evaluated based on the administrative record. And, without further discovery, a
district court may allocate significant weight to a conflict of interest where the record
reveals a lack of thoroughness.”). Indeed, the additional evidence offered by the Plaintiff
seems more appropriately characterized as refuting the plan administrator’s decision, and
as such constitutes the prohibited “second bite of the apple” evidence that is not permitted
in an ERISA case. Jewell, 508 F.3d at 1309 (“Supplemental evidence should not be used
to take a second bite at the apple, but only when necessary to enable the court to
understand and evaluate the decision under review.”). Consequently, the Court finds that
supplementation of the administrative record with the additional evidence proffered by
the Plaintiff would be inappropriate, and the Plaintiff’s Motion to Expand Administrative
Record and Disclosure [Docket No. 16] should therefore be denied.
For the reasons set forth above, IT IS HEREBY ORDERED that the Plaintiff’s
Objections to Defendant’s Proposed Joint Submission of Administrative Record [Docket
No. 13] are hereby OVERRRULED, and the Plaintiff’s Motion to Expand Administrative
Record and Disclosure [Docket No. 16] is hereby DENIED.
IT IS SO ORDERED this 27th day of September, 2012.

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