Crose v. Humana Insurance Company

Filing 33

ORDER DENYING 21 Motion for Summary Judgment; GRANTING 25 Sealed Motion; GRANTING 27 Motion for Leave to File; GRANTING 28 Motion for Leave to File Sealed Document; GRANTING 31 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2015 'U

ID:

ELEANOR CROSE, Individually and as
Permanent Guardian of Ronald Crose,
Plaintiff,
Case No. A-14-CA-205-SS

-vs-

HUMANA INSURANCE COMPANY,

Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Plaintiff Eleanor Crose' s Motion for Summary Judgment [#21], Defendant Humana

Insurance Company's Motion for Summary Judgment [#25] (sealed), the parties' respective
Responses [##28- 1 (sealed), 29] thereto, the parties' respective Replies [##3 1-1 (sealed), 32] thereto,

Plaintiffs Appendix to Plaintiff's Motion for Summary Judgment [#22], Plaintiff's Supplemental
Appendix to Plaintiff's Motion for Summary Judgment [#30], Plaintiff's Unopposed Motion for
Leave to File Supplemental Summary Judgment Evidence [#271,1 and Defendant Humana Insurance

Company's Motions for Leave to File Under Seal [##28, 31] 2 Having reviewed the documents, the
governing law, and the file as a whole, the Court now enters the following opinion and orders.

1

Plaintiffs Unopposed Motion for Leave to File Supplemental Summary Judgment Evidence [#2 7] is hereby

GRANTED.
2

Defendant Humana Insurance Company's Motions for Leave to File Under Seal [##28, 31] are hereby
GRANTED.

1

3

Background
Plaintiff Eleanor Crose' s husband, 43-year-old Ron Crose, is insured under a health insurance
policy issued by Defendant Humana Insurance Company (Humana). On June 24, 2013, Mr. Crose
suffered a stroke which left him mentally and physically impaired. Plaintiff filed a claim under the

policy and Humana denied it, citing to a policy exclusion rendering benefits non-payable when the
insured's injury is "due to being intoxicated or under the influence of any narcotic unless
administered on the advice of a health care practitioner." App'x Pl.'s Mot. Summ. J. [#22-3] Ex.
C (Policy) at 47. Plaintiff now sues for breach of contract, unfair insurance practices under Texas

Insurance Code
§

§

541.060, and prompt payment violations under Texas Insurance Code

542.058(a).
At approximately 9:00p.m. on June23, 2013, Mr. Crose ingested MDMA, commonly known

as "ecstasy," a drug with amphetaminic and hallucinogenic properties. DeL's Mot. Summ. J. [#25-31

(sealed) Ex. 3 (Crose Dep.) at 38:20-39:4, 40:5-9. At approximately midnight, Plaintiff, who had

been away for the evening attending a concert, met Mr. Crose at a friend's home, where Mr. Crose
and friends were swimming. Id. at 40:16-20. Upon Plaintiff's arrival, Mr. Crose told Plaintiff he
was nauseated and suffering from diarrhea, and said "earlier in the evening" he had experienced a

"terrible" headache which "felt like his head was going to explode." Id. [#25-2] (sealed) Ex. 2 (P1.' s
Interrog. Resps.) at 19. Plaintiff states when she arrived, her husband was sweating, but was

otherwise acting normally, and the two swam at their friend's home until approximately 1:00 a.m.
and then returned to their home. Id. After arriving home, Plaintiff and Mr. Crose changed clothing

and took a walk around their neighborhood; Plaintiff testified her husband "seemed fine" and

"seemed himself' during that time. Crose Dep. at 44:15-17. At approximately 2:00 a.m., Plaintiff
-2-

went to sleep, and Mr. Crose told Plaintiff "[h]e wasn't tired and was going to stay up for a bit and
play music" which was, according to Plaintiff, not out of the ordinary. Id.

Around 9:00 a.m. that same morning (June 24, 2013), Plaintiff found her husband lying in
the backyard, non-responsive and in a pool of vomit. Emergency services transported Mr. Crose to
the hospital, where he was seen in the E.R. by Dr. Ray Bogitch, who determined Mr. Cross had

suffered a stroke caused by bleeding within his brain and recommended emergency neurosurgery.

App'x Pl.'s Mot. Summ. J. [#22-2] Ex. B (Bogitch Report) at 3. Concerning Mr. Crose's drug use,
Dr. Bogitch's report states: "This is [a] gentleman who unfortunately, with very little past medical

history, used MDMA last night and was found down today with a very large intraparenchymal

hemorrhage.

. .

." Id.

Following surgery, Mr. Crose was examined by Dr. John Hinze, D.O., who indicated in his

report he "suspect[ed]" Mr. Crose's stroke was "due to uncontrolled hypertension likely from his
ecstasy ingestion." Def.'s Mot. Summ. J. [#25-4] (sealed) Ex. 4 (Hinze Report) at 2. Dr. Hinze's

report further noted MDMA ingestion "would account for [Mr. Crose's] diaphoresis [sweating],
nausea, vomiting, diarrhea, and could produce a hypertensive state, which would exacerbate if not

initiate" Mr. Crose's stroke. Id. Finally, Dr. Hinze noted two additional signs of MDMA ingestion:
"[i]ncreased transaminases," or elevated levels of certain liver enzymes, and "[m]ild hyponatremia,"
or slightly low sodium concentration in the blood. Id.

On August 13, 2013, Mr. Crose received a follow-up examination in the Austin Regional
Clinic, where Dr. Mark Nugent noted Mr. Crose's stroke "occurred on June 24 when he was found

unresponsive in his yard. He had complained the night before of an intense headache following

-3-

ingestion of MDMA.

hemorrhage.

.

.

He was found to have had a large left-sided intraparenchymal

." Id. [#25-7] (sealed) Ex. 7 (Nugent Notes) at 1.

Based on these medical records, Humana declined to pay insurance benefits for Mr. Crose
given the intoxication and narcotics exclusion cited above. On March 7, 2014, Plaintiff initiated this
action by filing her complaint, and the instant cross-motions for summary judgment followed.

Analysis
I.

Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law.
v.

Catrett, 477 U.S. 317, 323-25 (1986); Washburn

v.

FED. R. CIV. P.

56(a); Celotex Corp.

Harvey, 504 F.3d 505, 508 (5th Cir. 2007).

A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could

return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248
(1986). When ruling on a motion for summary judgment, the court is required to view all inferences

drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co.

v.

Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court

"may not make credibility determinations or weigh the evidence" in ruling on a motion for summary

judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477
U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the

nonmoving party's case, the party opposing the motion must come forward with competent summary

judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere

conclusory allegations are not competent summary judgment evidence, and thus are insufficient to
defeat a motion for summaryjudgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and unsupported speculation are

not competent summary judgment evidence. Id. The party opposing summary judgment is required
to identify specific evidence in the record and to articulate the precise manner in which that evidence

supports his claim. Adams

v.

Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006).

Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to
support the nonmovant's opposition to the motion for summary judgment. Id.

"Only disputes over facts that might affect the outcome of the suit under the governing laws
will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact

issues that are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary

judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the
existence of an element essential to its case and on which it will bear the burden of proof at trial,
summary judgment must be granted. Celotex, 477 U.S. at 322-23.

II.

Application
Plaintiff argues she is entitled to summary judgment because Humana cannot prove the

exclusion, upon which it relied to deny Plaintiff's claim, applies. Plaintiff makes four arguments:
(1) MDMA is not a "narcotic" and thus cannot fall within the exclusion; (2) there is no evidence Mr.

Crose's stroke was "due to being.

. .

under the influence of any narcotic"; (3) there is no evidence

Mr. Crose was "intoxicated" at the time of his stroke; and (4) there is no evidence "being

intoxicated" caused Mr. Crose's stroke. Humana disagrees, claiming summary judgment in its favor

-5-

is appropriate, as Mr. Crose's use of MDMA caused his stroke, triggering both portions of the

exclusion.
As set forth below, the Court finds MDMA is a "narcotic" within the meaning of the Policy.

Further, the Court finds Humana has shown Mr. Crose's stroke was "due to" his ingestion of

MDMA, and Plaintiff has failed to adduce evidence sufficient to create a genuine issue of fact

concerning that causal cormection. Accordingly, the exclusion applies, and Humana is entitled to

summaryjudgment. The Court declines to consider the parties' arguments concerning intoxication.
A.

Whether MDMA is a "Narcotic"
Giving the word "narcotic" its plain and ordinary meaning, the Court finds MDMA is a

"narcotic" within the meaning of the Policy.
As this is a diversity case, Texas rules of contract interpretation control. Am. Nat. Gen. Ins.
Co. v. Ryan, 274 F.3d 319, 323 (5th Cir. 2001). Under Texas law, the same rules apply to the

interpretation of insurance contracts as apply to the interpretation of other contracts. Id. (citing

Forbauv. AetnaLife Ins. Co., 876 S,W.2d 132, 133 (Tex. 1994)). Terms used in an insurance policy
are given their plain and ordinary meaning unless the policy shows the parties intended the terms

have a different meaning. Id. (citing Puckett

v.

US. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.

1984)). Ambiguous insurance contracts will be construed against the insurer. Id. (citing Tex. Dep 't

ofHous.

& Cmty. Affairs v. Verex Assurance, Inc., 68 F.3d 922, 929 (5th Cir. 1995); Nat'! Union

Firs Ins. Co.

v.

Hudson Ener. Co., 811 S.W.2d 552, 555 (Tex. 1991)). "The policy of strict

construction against the insurer is especially strong when the court is dealing with exceptions and

words of limitation." Id. (quotingBlaylockv. Am. Guar. BankLiab. Ins. Co., 632 S.W.2d 719,721
(Tex. 1982)). "Where an ambiguity involves an exclusionary provision of an insurance policy,

[courts] 'must adopt the construction of an exclusionary clause urged by the insured as long as that

Safeco Ins. Co. of Am., 972 S.W.2d 738, 741

construction is not unreasonable[.]" Balandran

v.

(Tex. 1998) (quoting Nat'! Union Fire Ins. Co.

Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.

v.

1991)). Where no ambiguity exists, however, these interpretive rules do not apply. State Farm

Lloyds v. Marchetti, 962 S.W.2d 58, 60 (Tex.

App.Houston [1st Dist.]

1997, pet. denied). The

mere fact the parties proffer conflicting interpretations of a term does not render the term ambiguous.

ACE Am. Ins. Co.

v.

Freeport Welding & Fabricating, 699 F.3d 832, 842 (5th Cir. 2010).

Again, the Policy excludes coverage for any "loss due to being.

. .

under the influence of any

narcotic." Policy at 47. The term "narcotic" is not defined in the Policy. Plaintiff contends
"narcotic" may be understood either to include (1) all drugs or (2) only opium, opiates, cocaine, and
related substances, and that the term is therefore ambiguous, requiring construal in favor of Mr.
Crose. Humana responds the term "narcotic" unambiguously includes all drugs and Plaintiff's

definition is unreasonable.

Plaintiff does have a point. The Texas Controlled Substances Act, for example, limits its
definition of "narcotic drug" to opium, opiates, cocaine, and related substances,

TEx.

HEALTH &

SAFETY CODE § 48 1.002(29), and classifies MDMA as a hallucinogen, not as an opiate or related

substance. See id.

§ § 481.102

(listing specific "opiates," "opium derivatives," and related substances

without listing MDMA (3 ,4methylenedioxy methamphetamine)), 481.103 (a)( 1) (listing MDMA
as a hallucinogen). The federal statutory scheme is extremely similar: the definition

of "narcotic

drug" contained in the federal Controlled Substances Act is materially identical to the Texas
definition, see 21 U.S.C. § 802(17) (defining "narcotic drug" to include opium, opiates, cocaine, and
related substances), and the federal Drug Enforcement Administration classifies MDMA as a non-7-

narcotic.3

Plaintiff further points to the Oxford English Dictionary (OED), which defines "narcotic"

as "[a] drug which when swallowed, inhaled, or injected into the system induces drowsiness, stupor,

or insensibility, according to its strength and the amount taken; esp. an

opiate."4

According to

Plaintiff, "[t]his definition does not describe ecstasy[,]" as MDMA does not produce "sedative
effects" like drowsiness or stupor; thus, in Plaintiff's view, in addition to MDMA's incongruence
with the state and federal statutory definitions of "narcotic," it does not fit within the dictionary

definition of the term. Pl.'s Mot. Summ. J, [#2 1] at 7-8.
The Court, however, is unpersuaded by Plaintiff's argument these differing definitions render

the term "narcotic" ambiguous as used in the Policy. In the opinion of the Court, neither the OED
definition nor the definitions found in the state and federal statutes reflect the ordinary meaning of
the term "narcotic" as it would be understood by a layperson, as both are specialized definitions
intended for use in specific contexts,

The OED definition Plaintiff cites includes a

notation"Med, "indicating it is a specialized medical

definition.5

Testimony from Plaintiff's

own expert suggests the OED definition is a pharmacological one used in medical settings. See

App'x P1.'s Mot. Summ. J. [#22-4] Ex. D (Bertelson Report) at 10 ("In my experience in the medical
setting, the word 'narcotic' is almost exclusively used when discussing certain pain medications."
(emphasis added)). The federal and state statutory definitions are part of highly detailed schemes
that distinguish between different substancesusing, for example, the words "drug," "narcotic,"

Controlled Substances by CSA Schedule at 1, http://www.deadiversion.usdoj .gov!schedules/orangebook/
e_cs_sched.pdf.
4Narcotic, n., OED ONLINE, Dec. 2014, http:!/www.oed.com!view/Entry/1 25101 ?result=1 &rskey=BoFmFO&.
5See supra n.5 (emphasis in original); How to use the OED: Abbreviations, http://public.oed.com/how-to-usethe-oed/abbreviations/#m (indicating "Med." stands for "medicine, medical").

"chemical," "controlled substance analogue," "controlled substance," "depressant substance,"
"stimulant substance," and others in differing

contextsin regulating producers, distributors,

dispensers, persons in possession of, and users of different types of substances. See 21 U.S.C.

§

802

(defining terms); TEx. HEALTH & SAFETY CODE § 481.002 (same). Further, these definitions are
themselves incongruent. Cocaine, for example, does not induce drowsiness or stupor, and thus does
not fall within the OED definition, yet is nevertheless classified as a narcotic under Texas and federal
law. See U.S. DEP'T OF JUSTICE, DRUG ENFORCEMENT ADMIx., DRUGS OF ABUSE 45 (2011)

("Cocaine is an intense, euphoria-producing stimulant drug .

.

. .

Other effects include increased

alertness and excitation[.]").6

The Court concludes these specialized definitions offered by Plaintiff are not appropriately
applied to the Policy. Rather, because nothing in the Policy shows "narcotic" was meant in a

technical or specialized sense, it must be "given [its] ordinary and generally-accepted meaning[.]"

Gilbert Tex. Constr., L.P.

v.

Underwriters at Lloyd's London, 327 S.W.3d 118, 126 (Tex. 2010)

(emphasis added); see Travelers' Indem. Co.

v.

DeWitt, 207 S.W.2d 641, 643 (Tex. 1948)

("[C]ontracts of insurance, like other contracts, must be construed.

.

.

in their plain, ordinary and

popular sense." (internal quotation omitted) (emphasis added)).
In determining the ordinaryand generally-accepted meaning of "narcotic," the Court can first

look back to the same OED entry cited by Plaintiff. In addition to the specialized medical definition,
the OED contains a second, more generic definition: "A drug affecting mood or behaviour which is

sold for non-medical purposes, esp. one whose use is prohibited or under strict legal control but

6

at

http://www.dea.gov/pr/multimedia-library/publications/drugofabuse.pdf#page=45.

which tends nevertheless to be extensively used

illegally."7

This second definition includes the

notation "orig. US.," indicating the definition originated in and is used in the United States. MDMA
is a mood-affecting drug, sold in the United States for non-medical purposes, that is prohibited by

federal and state law yet extensively used illegally.

See, e.g.,

Def. 'S Mot. Summ. J. [#25-12] (sealed)

Ex. 12 (Senate Caucus Int'l Narcotics Control, Dr. Jacobs Statement) at 3-5 (describing mood-

affecting properties of MDMA and "steadily increasing" recreational MDMA use in the United
States). Thus, under the OED's general definition, MDMA is a narcotic, and the Court agrees

laypersons understand it as such.

See also

PUTT ET AL., COUCH ON INSURANCE

§

144:43 ("Where

the exclusion is worded so as to prevent recovery for injuries or sicknesses arising from the use of

'narcotics,' the term narcotics is given its common meaning as 'illegal drug' and therefore includes
cocaine."). The Court therefore finds the term "narcotic" is not ambiguous, and that MDMA is a

"narcotic" within the meaning of the Policy.
B.

Whether Mr. Crose's Stroke Was "Due to. . . Being Under the Influence of" MDMA
Having determined MDMA is a narcotic within the meaning of the Policy, the Court turns

to the question whether Mr. Crose's stroke was "due

to. . . being under the influence of' MDMA.

Policy at 47. Plaintiff does not dispute in her briefing that Mr. Crose was "under the influence of'
MDMA when he suffered the stroke; only whether the stroke was "due to" his being under the
influence is contested. Two issues must be resolved: first, the precise causal nexus required by the

exclusion, and second, whether Humana has shown causation as a matter of law. As set forth below,

the Court concludes the exclusion requires a showing of proximate cause, as the term is used in
insurance law. Further, the Court finds Humana has made that showing, and Plaintiff has failed to

See supra

11.5.

-10-

adduce evidence creating a fact issue as to causation. Accordingly, Humana is entitled to summary

judgment.
1.

The causal nexus required by the exclusion

Plaintiff argues in order to show causation, Humana must "prove, to a reasonable degree of
medical certainty, based on a reasonablemedical probability and scientifically reliable evidence, that

Ron Crose' s use of [MDMA] caused the injury." P1.' s Mot. Summ. J. [#21] at 11. Humana counters

Plaintiff's formulation of the causation standard impermissibility heightens its burden of proof by
requiring a showing of sole causation, and claims it need only demonstrate that Mr. Crose's MDMA
ingestion was a cause, not the cause, of his stroke. To the extent Plaintiff's formulation of the
standard suggests Humana must show MDMA ingestion was the sole cause of Mr. Crose's stroke,
the Court disagrees with Plaintiff. Rather, the Court interprets the phrase "due to" to require a
showing of proximate cause.

The Texas Supreme Court considered the meaning of the phrase "due to" in an insurance
exclusion in Utica National Insurance Co. of Texas

v.

American Indemnity Co., 141 S.W.3d 198

(Tex. 2004). In Utica, patients of certain doctors became sick afterbeing injected with contaminated

anesthetic. Id. at 199. The anesthetic was contaminated because an low-level employee of the

medical facility had been using dirty needles to steal the anesthetic and inject himself with it. Id. at
200. The defendant argued the patients' injuries fell within a provision excluding coverage for injury

"due to" the rendition of professional services. Id. at 202. Finding against the defendant, the Court
concluded the exclusion required "more than [a] simple cause in fact" relationship between the

patients' illness and the injections their doctors administered. Id. at 203. The Court noted the phrase
"arising out of," which was used in other exclusions within the same policy, meant simply "but for
-11-

causation, though not necessarily direct or proximate causation." Id. (citing Mid-Century Ins. Co.
v.

Lindsey, 997 S.W.2d 153, 156 (Tex. 1999)). Finding the different wording significant, the Court

concluded "[t]he most reasonable conclusion is that 'due to' requires a more direct type of causation
that could tie the insured's liability to the manner in which the services were performed." Id.

Requiring the causal relationship between an insured's injury and the excluded condition be
"more direct" than but-for causation does not mean, however, that the insurer must show the
excluded condition is the sole cause of the injury. Had the drafters of the Policy intended to require
a sole-cause standard, they could have indicated they were doing so by including language like

"solely results" or "directly results independently of all other causes." See Edwards
Sys.

v.

Emps. Ret.

of Tex., No. 03-03-00737-CV, 2004 WL 1898253, at *5 (Tex. App.Austin Aug. 26, 2004, no

pet.) (citing Stroburg

v.

Ins. Co.

of N. Am., 464 S.W.2d 827, 828 (Tex. 1971)) (holding the phrase

"directly results," absent the additional phrase "independently of all other causes," means proximate
cause, not sole cause). Further, while the Court can find no Texas decisions specifically discussing

narcotics exclusions in this context, "Texas cases generally interpret alcohol exclusions to apply even
where alcohol is not the sole cause of death." Likens v. HartfordLfe &Accident Ins. Co., 688 F.3d
197, 202 (5th Cir. 2012).

But the foregoing analysis gives us only a range of causal relationships possibly denoted by

"due to": the precise nexus required falls somewhere between simple but-for causation and sole
causation. Because the phrase is ambiguous, the Court interprets it to require proximate causation,

giving the beneficial reading to Plaintiff. See id. (interpreting ambiguous causal language to require
proximate causation where that reading benefitted the insured). While proximate cause is a familiar
concept from the law of torts, its meaning in insurance law differs slightly: in insurance cases, the
-12-

foreseeability element is not required. Stroburg, 464 S.W.2d at 831; 46 TEx.
CONTRACTS

JUR. 3D INS.

& COVERAGE § 968. Consequently, as used in insurance law, a proximate cause is "a

substantial factor in bringing about injury or death, and without which the injury or death would not

have occurred." See Transcon. Ins. Co.

v.

Grump, 330 S .W. 3d 211,222-23 (Tex. 2010) (explaining

a "producing cause" is conceptually identical to proximate cause less the foreseeability requirement,

and defining "producing cause" as quoted). Of course, there can be more than one proximate cause

of an injury. Del Lago Partners, Inc.

v.

Smith, 307 S.W.3d 762, 774 (Tex. 2010); see also Likens,

688 F .3d at 203 (noting, where insurance exclusion requires proximate cause, that "intoxication may

not have been the only cause, but it does not have to be so to satisfy the exclusion.")
2.

Humana has carried its burden

Plaintiff next claims she is entitled to summary judgment because Humana has failed to carry
its burden to produce evidence showing Mr. Crose's stroke was due to being under the influence of

MDMA. According to Plaintiff, Dr. Hinze' s statements that he "suspect[s]" the stroke was caused

by MDMA ingestion and that MDMA ingestion "could produce a hypertensive state, which would
exacerbate if not initiate [Mr. Crose' s stroke]" fall short of demonstrating MDMA caused the stroke
within reasonable medical probability. Additionally, Plaintiff argues the mere fact the stroke
occurred a few hours after Mr. Crose ingested MDMA does not establish causation without
corroborating proof of a scientific connection between MDMA exposure and stroke, which Plaintiff
contends Humana has not offered and cannot offer because it does not exist.

Citing a number of studies relied upon by its experts and Plaintiff's experts which allegedly
link MDMA consumption and stroke, Humana contends it has made the required showing as a

matter of law, arguing that taken in concert, the opinions of Mr. Crose's doctors and Humana's
-13-

experts that MDMA may have caused the stroke, the scientific link between MDMA and stroke
demonstrated by the studies, the absence of an alternative explanation for the stroke, and the

temporal proximity of Mr. Crose's MDMA ingestion to his stroke prove being under the influence

of MDMA was at least a cause of Mr. Crose's stroke. The Court agrees with Humana.
Several pieces of evidence suggest Mr. Crose' s ingestion of MDMA was a substantial factor
in bringing about Mr. Crose's stroke, without which the stroke would not have occurred. First, the
direct medical evidence submitted by the parties indicates Mr. Crose's treating physician believed,

upon examination of Mr. Crose, that his MDMA ingestion led to uncontrolled hypertension8 which
in turn caused his stroke. See Hinze Report at 2 ("I suspect this [stroke] is due to uncontrolled

hypertension likely from his ecstasy ingestion."); id. ("[E]cstasy ingestion

. . .

could produce a

hypertensive state, which would exacerbate if not initiate his [stroke]."). Mr. Crose' s Seton Hospital
"face sheet"9 gives his diagnosis as "Overdose, Brain Bleed." Def.'s Mot. Summ. J. [#25-14]
(sealed) at 10.

The Court caimot agree with Plaintiff's argument Dr. Hinze's use of the phrases "I suspect"
and "could produce" detract from the force of his assessment. In support of her position, Plaintiff
cites an unpublished Fourth Circuit opinion, Moore v. Unum Provident Corp., 116 F. App' x 416(4th
Cir. 2006). In Moore, the insured, while under the influence of methamphetamine, attempted to

attack his girlfriend's lover with a gun. Id. at 418. The lover wrested the gun from the insured and

beat the insured with it. Id. The insured then died from cardiac arrhythmia due to the stress of the
8

"Hypertension" is a medical term for high blood pressure. High blood pressure, MEDLINEPLUS, U.S. NAT'L
http://www.nlmnih.gov/medlineplus/ency/article/000468.htm ("Hypertension is another term used to
describe high blood pressure.").
LIB. OF MED.,

A "face sheet," typically the first sheet of a hospital chart, gives basic information about the patient.
10-11 (2001).

LAURENCE M. DEUTSCH, MEDICAL RECORDS FOR AUORNEYS

-14-

beating. Id. The insurer denied the insured's surviving spouse's death benefits claim on several
grounds, one of which was a provision excluding coverage for "injury caused by or contributed to

directly or indirectly by: the Insured being under the influence of a 'controlled substance." Id.
The only medical analysis of the relationship between the insured's methamphetamine use
and his death in the Moore record, provided by one Dr. Sweeney, generally discussed the relationship

between the use of stimulants and cardiac arrhythmia and concluded "chronic cocaine and/or
methamphetamine abuse could contribute to a cardiomyopathy" and the "known pharmacologic
effects of methamphetamine

.

.

.

could be expected to acutely exacerbate any pre-existing

cardiovascular disease." Id. at 420. The Moore court found Dr. Sweeney's opinion was "not

relevant because there is no evidence that Moore was a chronic user of such drugs." Id. at 421.
Additionally, the court stated Dr. Sweeney's opinion the level ofmethamphetamine in the insured's

system "could" have contributed to his death was "too indefinite" to support a finding that the

insured's death resulted from methamphetamine abuse. Id.
Even were Moore precedential authority from this Circuit, which it is not, it is distinguishable
from this case. Unlike in Moore, Dr. Hinze' s opinion was in no way contingent upon whether or not
Mr. Crose was a chronic user of MDMA or other drugs or whether or not Mr. Crose had a pre-

existing disease, Rather, Dr. Hinze made it clear the stroke was likely caused by uncontrolled
hypertension which resulted from Mr. Crose' s ecstasy ingestion, and the medical literature in the
record supports Dr. Hinze's assessment, as will be discussed in a moment. Dr. Hinze was the doctor
who treated Mr. Crose upon his admission to the hospital following the stroke and the individual

who actually made Mr. Crose' s diagnosisunlike Dr. Sweeney, who was the insurance company's

consulting physician. See Brief for Appellant, Moore, 116 F. App'x 416 (Nos. 03-23 1 1(L), 04-15-

1044), 2004 WL 5871654, at *9 (stating Dr. Sweeney is the insurer's consultant). Further, unlike

in this case, there was an obvious alternative explanation for the Moore insured's death recognized

by the courtthe stress of the beating administered by the lover. The Court finds Moore unhelpful
to resolution of this lawsuit, and declines to hold Dr. Hinze's opinion is "too indefinite" to support

causation.
Second, the connections between (1) MDMA and hypertension and (2) hypertension and
stroke are both well documented, and appear in the evidence submitted by both parties.

See, e.g.,

DeL's Mot. Summ. J. [#25-12] (sealed) Ex. 12 at 4 (U.S. Senate Caucus Report listing
"hypertension" as a "common acute medical effect" of MDMA); Id. [#25-11] (sealed) Ex.

11

pp.

17-24 (Nat'l Institute on Drug Abuse Report) at 4 (noting symptoms of MDMA overdose include
hypertension); Bertelson Report at

8

(Plaintiff's expert, noting hypertension is a side effect of

MDMA); DeL's Mot. Summ, J. [#25-5] (sealed) Ex. 5 at

1

(report from clinic & spinal institute

stating intracerebral hemorrhage, or stroke, "is most commonly caused by hypertension"); Bertelson

Report at

8

(Plaintiff's expert, noting hypertension is "by far the most common attributable risk

factor" to stroke); App'x PL's Mot. Summ. J. [#22-6] Ex. F-B at ECOO1 117 (article from medical
publication "Stroke" indicating strokes result from "sustained hypertension"). Further, while it is
true the direct link between MDMA and stroke is less well documented in the medical literature,
several of the articles and studies relied upon by both parties' experts recognize a link does indeed
exist. See App'x Pl.'s Mot. Summ. J. [#22-4] Ex. D pp. 30-43 (The Pharmacology & Toxicology

of MDMA) at 922-23 (explaining one of MDMA's two basic "serious adverse effects on the
cardiovascular system" is "hypertension, with a consequent risk of ruptured blood vessels and
internal hemorrhage" and noting "[m]ajor intracranial hemorrhages have been reported" in the
-16-

clinical literature); Id, [#22-4] Ex. D pp. 71-78 (Acute Toxic Effects of MDMA) at 680 ("An

association between Ecstasy use and cerebral haemorrhage.

. .

has been reported."); Def. 's Mot.

Summ. J. [#25-11] (sealed) Ex. 11 pp. 39-40 (Cerebral Infarction) (reporting a 1993 case of stroke

following MDMA ingestion, believed by the authors to be the first recorded in the literature).

Third, the doctors who treated Mr. Crose following his stroke found no evidence which
would provide an alternative explanation for the event. Dr. Jefferson Miley, Mr. Crose' s neurologist,
noted while underlying vascular malformation was typically the cause of stroke in men of Mr.

Crose' s age, "[t]here was no evidence found ofvascular malformation in Ron[.]"1° App'x P1.' s Mot.
Summ. J. [#22-6] Ex. F (Miley Deci.) at

1.

Additionally, Mr. Crose had no history of hypertension

prior to this event. Def.'s Mot. Summ. J. [#25-14] (sealed) Ex. 14-A pp. 23-26 (Seton Progress
Notes) at 23 ("pt has no underlying hx ofHTN."). Plaintiff has adduced no evidence suggesting Mr.

Crose' s stroke had some other underlying cause; in essence, Plaintiffs argument boils down to an
unsupported claim that while Plaintiff does not know what caused Mr. Crose's stroke, it could not
have been the ecstasy.

While stroke may be a rare consequence of ecstasy ingestion, it is

nevertheless a medically recognized potential consequence, and no other explanations for the stroke

were offered by Mr. Crose's physicians.
Fourth, while Plaintiff is correct that temporal proximity between Mr. Crose' s MDMA

ingestion and his stroke is not alone enough to demonstrate causation, the temporal relationship

between the two events does suggest the possibility of a causal connection. Combined with the

10

mean
Dr. Miley went on to state that while no evidence of vascular malformation was found, "that does not

remove the
it did not exist" and speculated any such evidence "may not have been preserved during the surgery to
speculation. See Turner, 476 F.3d
hematoma." Miley Deci. at 1. The Court declines to give weight to this unsupported
at 343 (unsupported speculation cannot defeat summary judgment).

-17-

evidence canvassed above, the fact that Mr. Crose's stroke occurred within hours after he ingested
ecstasy has probative value. See Guevara

v.

Ferrer, 247 S.W.3d 662, 668 (Tex. 2007) ("[Wjhen

combined with other causation evidence, evidence that conditions exhibited themselves or were
diagnosed shortly after an event may be probative in determining causation.").
Finally, the expert testimony upon which Plaintiff relies, attempting to create a genuine issue

of fact on the causation question, misconstrues the applicable legal standard. PlaintifP s expert, Dr.
Bertelson, concludes that given the limited amount of medical literature documenting a connection

between MDMA and stroke, "it is not possible to say with reasonable medical probability that
MDMA was the cause of the hemorrhage in Mr. Crose." Bertelson Report at 9 (emphasis added).
Similarly, in his declaration for Plaintiff, Dr. Miley opines "[i]t is fair to say with... 100% certainty

that ecstasy may have not been the only absolute cause of Ron's intracerebral hemorrhage." Miley
DecL at

1

(emphasis added). Both experts' testimony suggests Humana is required to prove ecstasy

ingestion was the cause of the stroke. Again, it is not. Humana's burden is only to demonstrate
ecstasy ingestion was a cause of the strokea substantial factor without which the stroke would not

have occurred. Dr. Bertelson's report and Dr. Miley's declaration thus do not create a genuine issue
as to whether MDMA was a cause of the stroke. Notably, considered under the proper causal

standard, portions of Dr. Miley's declaration tend to support Humana. See id. ("Use of ecstasy can

increase the odds of suffering an ischemic stroke or intracerebral hemorrhages but the cause-effect
is not 100%. Use of this drug is considered to be a risk factor.").
In sum, Humana has adduced evidence demonstrating Mr. Crose's stroke was proximately

caused by his MDMA ingestion. Plaintiff has failed to present contrary evidence raising a genuine

issue of fact. The Court concludes as Mr. Crose's stroke occurred "due to" his ingestion of MDMA,

Humana properly denied coverage on the basis of the Policy's narcotics exclusion. Plaintiff's Texas
Insurance Code claims therefore fail as well. See Arredondo v. Hartford Life & Acc. Ins. Co., 860
F. Supp. 2d 363, 371 (S.D. Tex. 2012) (citing ProvidentAm. Ins. Co. v. Casteneda, 988 S.W.2d 189,

194 (Tex. 1998)) ("[N]o violation

of the.

.

.

Insurance Code exists unless an insurer denies a claim

when liability is 'reasonably clear."). Humana is entitled to summary judgment.

Conclusion
Accordingly:
IT IS ORDERED that Plaintiff Eleanor Crose's Unopposed Motion for Leave to File

Supplemental Summary Judgment Evidence [#27] is GRANTED;
IT IS FURTHER ORDERED that Defendant Humana Insurance Company's Motions

for Leave to File Under Seal [##28, 31] are GRANTED;
IT IS FURTHER ORDERED that Plaintiff Eleanor Crose's Motion for Summary

Judgment [#2 1] is DENIED; and
IT IS FINALLY ORDERED that Defendant Humana Insurance Company's Motion

for Summary Judgment [#25] (sealed) is GRANTED.
SIGNED this the a28

day of May 2015.

SAff

UNITED STATES I3ISTRICT JUDGE

205 msj ord ba.frm

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