LUCAS v. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON et al

Filing 18

MEMORANDUM AND ORDER THAT PLAINTIFF KELLY LUCAS MOTION FOR DISCOVERY BE GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/12/11. 12/13/11 ENTERED AND E-MAILED.(jl, )

IN TilE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KELLY LUCAS
CIVIL ACTION

FILED

NO. 11-4417

DEC 1 2 2011

v.

LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON, ET AL.

MIGH&... . 'UNZ, C1e!k
By . ) t:.: Dep. Cle!k

DECEMBER/~, 2011

SURRICK, J.

MEMORANDUM
Presently before the Court is Plaintiff Kelly Lucas's Motion for Discovery, (ECF No.
16.) For the following reasons, the Motion will be granted in part and denied in part.
I.

BACKGROUND
PlaintifT brings this action under the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C. § I 00 I et seq. (Campi.

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I, ECF No. 1.) She seeks judicial review of the

decision of Defendants Liberty Life Assurance Company of Boston and T.iberty Mutual Group to
deny long-term disability benefits, which Plaintiff contends are due to her under her employer
Geisinger System Services's long-term disability plan ("Plan"). (ld at ,12.)'
An Initial Pre-Trial Conference was held on October 12, 2011. (ECF No. 13.) During
this con1i:rence, Plaintiffs counsel requested to conduct discovery. In response to this request,

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Plaintiff originally named Liberty Life Assurance Company of Boston, Liberty Mutual
Oro up, Geisinger System Services, Geisinger Long-Term Disability Plan, Geisinger Long-Term
Disability Policy and Geisinger Health Systems as deli:ndants. (Compl.) On September 23,
2011, Plaintiff stipulated to dismissing the action against Geisinger System Services, Geisinger
Long-Term Disability Plan, Geisinger Long-Tenn Disability Policy and Geisinger Health
Systems, with prejudice. (ECF No. 10.) We approved this stipulation on September 26, 2011.
(ECF No. II.)
In addition, in her Complaint, Plaintiff asserts that she has exhausted all administrative
remedies under the Plan's claims procedure. (Compl. ~ 4.)

we entered an Order requiring that Plaintiff file a motion formally requesting discovery, (Order
~II,

ECF No. 14.) The Order required Plaintiff to outline the specific discovery that she sought

to obtain. (Id.) With regard to any depositions that Plaintiff intended to take, the Order required
that Plaintiff outline the specific information that she was seeking and the reasons therefor. (!d.)
Plaintiff filed the instant Motion on October 17,2011. (Pl.'s Mot., ECF No. 16.)
Plaintiff has requested limited discovery in the fom1 of one set of written interrogatories and
requests for admissions and one deposition of Defendants' Appeal Review Consultant, Stephanie
Berry. (!d.

at~~

1-7.) On October 24,2011, Defendants filed their Response in Opposition to

PlaintilT's Motion. (Defs.' Resp., ECF No. 17 .) Defendants contend that the discovery which
Plaintiff requests exceeds the proper scope of discovery for an ERISA action and accordingly,
requests that the Court deny Plaintiff's Motion. (!d. at 2, 11.?
II.

DISCUSSION
The parties agree that the appropriate standard of review in this action is the arbitrary and

capricious standard. (See Pl.'s Br. 2-3, ECF No. 16-1; Delk' Resp. 2. )3 An entity administering
an ERISA plan must "provide a 'full and fair review' of claim denials." Firestone Tire & Rubber

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Defendants also assert that "[c]ontrary to the Court's October 12,2011 order, Plaintiffs
motion and supporting memorandum does not attach the proposed interrogatories or request for
admissions .... " (Defs.' Resp. 2.) Our Order did not require Plaintiffto attach these written
discovery requests.
3

In the ERISA context, courts in this Circuit have Llsed the term "arbitrary and
capricious" interchangeably with "abuse of discretion." See, e.g., Funk v. CIGNA Group ins.,
648 F.Jd 1H2, 190 & n.l 0 (3d Cir. 2011) (using "abuse of discretion" standard and equating that
standard with an "arbitrary and capricious" review); Miller v. Am. Airlines, Inc, 632 F. 3d 837,
845 n.2 (3d Cir. 2011) ("In the ERISA context, the arbitrary and capricious and abuse of
discretion standards of review are essentially identical."); Howley v. Mellon Fin. Corp., 625 F.3d
788, 793 & n.6 (3d Cir. 2010) (same).
2

Co. v. Bruch, 489 U.S. 101, 113 (1989) (quoting 29\J.S.C. § 1133(2)). A participant or
beneficiary who disagrees with an administrator's decision may bring an action in federal court
"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." 29 U.S.C.
§ 1132(a)(1 )(B). Where a plaintiff alleges that a plan administrator abused his discretion in
deciding to terminate or deny benefits, we generally limit our review to the administrative

record-that is, to the "evidence that was before the administrator when [it] made the decision
being reviewed." Mitchell v. F:astman Koduk Co., 113 F.3d 433,440 (3d Cir. 1997); see also

Post v. Hartford Ins. Co., 501 F.3d !54, 168 (3d Cir. 2007). In addition to our review of the
administrative record, the Supreme Court requires that we consider any conflicts of interest in
deciding whether there has been an abuse of discretion. In the case of Firestone Tire and Rubber

Co. v. Bruch, the Court explained that "if a beneiit plan gives discretion to an administrator or
fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in
determining whether there is an abuse of discretion." 489 U.S. at 115 (intemal quotation marks
omitted). ln Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008), the Court clarified this,
indicating that while the existence of a conflict of interest, such as where "a plan administrator
both evaluates claims for benefits and pays benefits claims," does not change the applicable
standard of review, a reviewing judge must "take account of the conflict when determining
whether the trustee, substantively or procedurally, has abused [its] discretion." !d. at 128.
"[ Tlhc significance of [a con11ict_l will depend upon the circumstances of the particular case." !d.
at I 08.
Interpreting Glenn, lhe Third Circuit in Estate ofSchwing v. Lilly Health Plan, 562 f.3d

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522 (3d Cir. 2009), stated that:
courts reviewing the decisions of ERISA plan administrators or fiduciaries in civil
enforcement actions brought pursuant to 29 U.S.C. § 1132(a)(l)(B) should apply a
deferential abuse of discretion standard of review across the board and consider any
conflict of interest as one of several factors in considering whether the administrator
or the fiduciary abused its discretion.

!d. at 525.

There are two general categories of conflicts. First, "structural conflicts" relate to
financial incentives inherent in a plan's design, such as where the same entity both funds and
administers a benefits plan. See Post, 501 F.3d at 162. Second, "procedural conflicts" relate to
the way in which the administrator arrives at his or her decision. !d. at 164-65; see also

Sivalingam v. Unum Provident Corp., 735 F. Supp. 2d 189,195 (E.D. Pa. 2010); Dandridge v.
Raytheon Co., No. 08-4793,2010 WL 376598, at *2 (D.N.J. Jan. 26, 2010). Procedural conflicts
often take the form of biases, which may be evidenced in a number of ways, such as "self-serving
selectivity" in the use and interpretation of expert reports or the administrator's ordering a
medical examination despite overwhelming evidence of disability. Post, 501 P .3d at 165. 4 An
ERISA plaintiff is not entitled to take discovery on the merits but may do so regarding conflicts

of interest. Sivalingam, 735 F. Supp. 2d at 196; see also Rhodes v. Principal Fin. Group, Inc.,
No. 10-290,2010 WL 4867618, at *2-3 (M.D. Pa. Nov. 23, 2010) (allowing discovery beyond
the administrative record directed to conflicts of interest but denying discovery to the extent it
sought to reexamine the merits ofthe administrator's detem1ination).
The parties agree that under the Plan, Defendants are responsible for deciding questions

4

Although Post was decided before Glenn, at a time when our Court of Appeals was still
applying the sliding~scale standard of review, the discussion of structural and procedural
conflicts in Post remains relevant to our post~Glenn abuse of discretion analysis.
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of henefit eligibility and for paying benefits. (See Pl.'s Br. 1; Defs.' Resp. 5.) Accordingly,
Plaintiff asserts that a structural conflict ofinti:rest exists. (Pl.'s Br. 1.) In addition, Plaintiff
asserts that "procedural irregularities" indicating "bias or inattentive claims handling" existed.
(ld) These assertions, if true, would influence the review of the Plan administrator's decision.

We will pennit Plaintiff to conduct limited discovery beyond the administrative record to the
extent it relates to the alleged conflicts of interest.
PlainLiifsceks to take the deposition of Defendants' Appeal Review Consultant,
Stephanie Beny, to determine the answers to the questions of (i) why Berry relied upon a pi:i:f
review opinion of Plaintiffs disability and ignored two prior independent medical examinations
finding Plaintiff disabled and a functional capacity examination that determined that Plaintiff had
less than sedentary capacity, (ii) why Berry ignored Plaintiff's treating doctors' opinions,
(iii) why Berry failed to address Plaintiffs unchanged back condition and (iv) why Berry failed
to follow ERISA regulations by failing to disclose the medical opinions she obtained before
making the claims decision. (Pl.'s Br. 4.) Plaintiff argues that these questions arc necessary to
determine how "Ms. Beny's actions were actually aHCctcd by the presence of a high level of
conflict," especially in this situation where "it is even unknown whether Ms. Berry relied on
internal claims handling procedures or not." (Jd.) Defendants contend that these questions "are
nothing more than an attempt to conduct a deposition of Ms. Berry concerning the reasons for the
final

admini~trative

decision and her thought process in arriving at her decision." (Dcfs.' Resp.

7.)

Although the answers to these questions may well shed light on how Berry arrived at her
decision to deny Plaintiff benefits, the first three questions directly address Plaintiff's allegation

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that an administrator selectively emphasized some evidence in favor of a denial of benefits and
de-emphasi:£cd other evidence that suggested a contrary conclusion. Selective emphasis of
certain evidence at the expense of other evidence suggesting a contrary conclusion may
demonstrate how a conflict of interest affected a benefits determination. See Glenn, 554 U.S. at
118 (expressing "serious concern[]" about selective emphasis on evidence favoring denial of
benefits and de-emphasizing other evidence suggesting a contrary conclusion). While on the
surface, the fOurth question addresses an alleged procedural irregularity, the question amounts to
an inquiry into why Berry denied Plaintiff benefits. See Rhodes, 2010 WL 4867618, at *2-3
(concluding that plaintiffs allegation that the failure to disclose a doctor's report before an
appeal denial "amount[ ed] to a dispute over the reasonableness of [the administrator'sj denial of
[plaintiffsl short-term disability claim"); see also Post, 501 F.3d at 168-69 (noting that in
evaluating an administrator's conflict of interest, a court may consider relevant evidence extrinsic
to the administrative record such as evidence of the plan's funding mechanism, but should not
evaluate extrinsic medical documents which are not relevant to bias and are only relevant to the
merits of the administrative decision).
Plaintiff also seeks to serve on Defendants one set of written discovery to determine (i)
why Defendants did not comply with ERISA regulations, (ii) why Defendants operated with one
plan documt~nt, (iii) why Defendants were sel1ish in their treatment of Plaintiffs sovial security
disability claim and (iv) why Defendants terminated Plaintiffs long-term disability benefits
despite extensive evidence that her medical condition did not change. (Pl.'s Br. 4.) She claims
that such discovery would enable the Courl to "evaluate all indications of bias and lhcir
application to the standard ofreview." (!d) These questions are overly broad and not tailored to

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assess potential procedural and structural contlicts of interest or the influence of such conflicts on
the denial of Plaintiff's claim for benefits. See Aquilino v. HartfOrd L!fe & Accident Ins. Co.,
No. 10-2044,2010 WL 3505172, at *4 (E. D. Pa. Aug. 31, 2010) (concluding that p1aintifffai1ed
to establish that she was entitled to discovery beyond the administrative record because the
"broad, merits-based evidentiary pursuit [was] not permitted in the context of arbitrary and
capricious review"); Sivalingam, 735 F. Supp. 2d at 197 (holding that plaintiff"may not discover
the factors utilized in the determination to deny [plaintiff's] claim for disability benefits, to the
extent that he seeks to learn the thought process of the administrator in making its decision)
(internal quotation marks omitted). Accordingly, we will deny Plaintiff's request for written
discovery.

Ill.

CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Discovery is granted in part and denied

in part.
An appropriate Order follows.

BY THE COURT:

CK,J.

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