Ferrari v. BlueCross BlueShield of Texas et al
MEMORANDUM AND ORDER granting 80 Motion for Judgment(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BLUECROSS BLUESHIELD OF TEXAS, et §
May 08, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-1660
MEMORANDUM AND ORDER
Pending before the Court is Defendant Aetna Life Insurance Company’s Motion for
Judgment (Doc. No. 80). After considering the Motion, the response thereto, and all applicable
law, the Court determines that the Motion should be granted.
This case arises from a dispute between Plaintiff Dr. Carlos Ferrari and Defendant Aetna
Life Insurance Company (“Aetna”) 1 concerning the denial of claims for medical benefits.
On October 20, 2016, Aetna moved for summary judgment. (Doc. No. 28.) Discovery
closed on January 16, 2017. Dr. Ferrari did not respond to Aetna’s summary judgment motion
until March 8, 2017. (Doc. No. 45.) The day before he filed his response, Plaintiff produced over
100 pages of new documents. (Doc. No. 52 at 2.) At a hearing held on April 7, 2017, the Court
struck the newly produced documents from the record.
On April 18, 2017, this Court granted summary judgment on the majority of Plaintiff’s
claims. (Doc. No. 72.) The only claims remaining in the case are the breach of contract claims
Plaintiff also brought claims against BlueCross BlueShield of Texas, BlueCross BlueShield of
Illinois, Horizon BlueCross BlueShield of New Jersey, and CIGNA Healthcare, Inc. The instant
motion does not concern Plaintiff’s claims against these other Defendants.
regarding three patients, identified as K.B., V.T., and S.D. Id. Aetna now moves for a judgment
dismissing the claims with respect to patient S.D. (Doc. No. 80.)
Dr. Ferrari argues that the Court lacks authority under the Federal Rules of Civil
Procedure to grant the requested relief. (Doc. No. 82.) The Court disagrees. Rule 56(b) provides
that a party may file a motion for summary judgment only until 30 days after the close of
discovery, unless the court orders otherwise. Here, Aetna filed its first dispositive motion well
within the timeframe contemplated by Rule 56. However, Dr. Ferrari filed additional documents
on March 7, 2017, nearly two months after the close of discovery. The Court therefore permits
Aetna to move for summary judgment on the basis of the documents produced on March 7.
Summary judgment is proper when there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine
issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party.
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The court can consider
any evidence in “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
Court must view all evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. Crawford, 234 F.3d at 902. The party moving for
summary judgment bears the burden of demonstrating the absence of a genuine dispute of
material fact. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir. 2001). If the moving party
meets this burden, the non-moving party must go beyond the pleadings to find specific facts
showing that a genuine issue of material fact exists for trial. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). Summary judgment is appropriate if a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case.” Celotex, 477
U.S. at 322.
Dr. Ferrari is an in-network provider with Aetna pursuant to an Independent Practice
Association Agreement (hereinafter, “the Contract”) between Aetna and Memorial Hermann
Health Network Provides, Inc. (Doc. No. 72 at 1.) As part of the Contract, Dr. Ferrari agreed to
comply with Aetna’s appeal process. Id. at 9. The Contract provides that the internal dispute and
appeal processes must be exhausted before a plaintiff may pursue arbitration or a lawsuit. Id.
Aetna asserts that Dr. Ferrari failed to appeal his payment for patient S.D. (Doc. No. 80.)
Aetna provides all the documents Dr. Ferrari produced concerning S.D., noting that there is no
evidence of an appeal. Id. Under Federal Rule of Civil Procedure 56(e)(2), if a party fails to
support an assertion of fact or fails to properly address another party’s assertion of fact, the court
may consider the fact undisputed for the purposes of the motion. Because Dr. Ferrari fails to
provide evidence that he appealed his payment for patient S.D., see Doc. No. 82 at 2, the Court
finds his failure to appeal to be undisputed. As such, under the terms of the Contract, Dr. Ferrari
is not entitled to pursue a lawsuit. The Court therefore grants summary judgment to Aetna with
regard to patient S.D.
For the reasons set forth above, the Court finds that Aetna’s Motion for Judgment is
IT IS SO ORDERED.
SIGNED at Houston, Texas, on this the 8th day of May, 2017.
HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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