discovery in fibromyalgia caseOne of the most challenging aspects of litigating cases under ERISA is that unlike other civil cases, in ERISA litigation courts usually disallow discovery. The ostensible reason for denying discovery is that in many instances, the case is being resolved based on a review of a record.But it is puzzling as to how courts believe they can resolve diametric conflicts in the evidence by reading complex medical records and reports without permitting discovery or cross-examination that could expose deficiencies in the evidence presented by either side.

In Duncan v. Anthem Life Ins. Co., 2021 WL 1237138 (S.D. Ill., April 2), a federal court in the Southern District of Illinois took the unusual step of permitting discovery in an ERISA disability benefit dispute. The court granted the motion filed by Kellie Crestman Duncan to obtain discovery relating to N. Nicole Barry, M.D., a consultant retained by Anthem Life. Barry is frequently retained by insurers to offer opinions on claims involving fibromyalgia; and the report she wrote in this matter contained the following generalities:

“Fibromyalgia is a pain syndrome, characterized by hyperalgesia to painful stimuli. It is not progressive nor is it associated with a pathological process.

“Fibromyalgia is optimally managed by encouraging exercise and activity, not be limiting it, and does not support the need for functional limitations. Therefore, functional limitations are not supported.”

The plaintiff argued that Barry’s opinion was contrary to the consensus opinion of the American College of Rheumatology regarding fibromyalgia; and that she offered the same opinion regarding Duncan as the one she offered in at least five other cases. Thus, argued the plaintiff, “Anthem’s choice of Dr. Barry to review [her] medical records … guaranteed that [her] claim would be denied.” Duncan asserted the hiring of Barry represented a conflict of interest which justified the need for the following discovery:

“Plaintiff would like to conduct written discovery regarding Anthem’s retention of Dr. Barry. Specifically relating to what guidelines were utilized in the retention of outside experts and production of all information relied upon in making the decision to retain Dr. Barry.

“Plaintiff would like to conduct written discovery regarding the number of cases Anthem and its vendor have retained Dr. Barry to examine claims for disability stemming from or relating to fibromyalgia. Specifically relating to the number of times Dr. Barry has opined that Fibromyalgia did not ‘support the need for functional limitations.’

“Plaintiff would like to conduct a deposition of Dr. Barry to question her regarding her controversial opinion a diagnosis of fibromyalgia does not ‘support the need for functional limitations.’

“Plaintiff would like to conduct written discovery requesting all written opinions that Dr. Barry has produced for an insurance company stating that a diagnosis of fibromyalgia does not ‘support the need for functional limitations.’”

Anthem maintained the discovery was improper since it did not select Barry. Instead, Barry was chosen by a vendor, Dane Street, which Anthem retained to choose an independent reviewer.

Although the court acknowledged that discovery in ERISA cases is normally disfavored, it is permissible when a plaintiff can identify two factors: “First a claimant must identify a specific conflict of interest or instance of misconduct. Second, a claimant must make a prima facie showing that there is good cause to believe limited discovery will reveal a procedural defect in the plan administrator’s determination.” (citing Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 814–15 (7th Cir. 2006)).

Although Anthem argued it “distanced itself from the process” of selecting a physician reviewer by relying on Dane Street to make that choice, the court disagreed, explaining:

“Although Anthem did not select Dr. Barry, it selected Dane Street. And if Dane Street consistently recruits a physician with a minority view that results in more claims being denied, then Anthem may have a conflict of interest. Suppose that Anthem receives a disproportionate number of benefits claims relating to fibromyalgia. If Anthem knows that Dane Street is likely to select Dr. Barry, who apparently does not believe that fibromyalgia is ever a qualifying condition, then it may be motivated to hire Dane Street so that it can deny more claims and thus benefit its bottom line.”

Thus, the court concluded, “Through limited discovery, the truth of the matter will surface.”

The 7th U.S. Circuit Court of Appeals has addressed fibromyalgia claims on several occasions. The first time the court encountered a disability claim involving fibromyalgia was 25 years ago in the context of a Social Security disability benefit application. In Sarchet v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996), the court described fibromyalgia as a condition causing “pain all over” and fatigue, and recognized the symptoms of the disorder “are entirely subjective” since there are no diagnostic laboratory tests that can detect the presence or severity of the condition. Fibromyalgia is diagnosed by clinical examination; and the court of appeals acknowledged the symptoms may be “easy to fake.”

Medicine has yet to develop a test for fibromyalgia in the intervening years, but there has been growing acceptance of disability resulting from that condition. In the 7th Circuit’s most recent decision involving fibromyalgia and disability, Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1156 (7th Cir. 2017) (affirming Kennedy v. Lilly Extended Disability Plan, 2015 WL 631391 (S.D. Ind., Feb. 13, 2015)), the court admonished benefit plans from utilizing consultants who express opinions denying fibromyalgia is disabling. Also, in Hawkins v. First Union Long Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the court criticized a consultant who rejected a claim of disability based on fibromyalgia because of his assertion that the majority of persons afflicted with that condition are not disabled. The court characterized such an opinion as the “weakest possible evidence.”

In this matter, Duncan presented evidence that Barry may be using the same boilerplate language in every fibromyalgia claim in which she is retained, and that she appears to refuse to accept that fibromyalgia is disabling. Thus, Duncan easily met the requirements necessary to trigger an allowance of discovery in her case.

 Mark DeBofsky represented the plaintiffs in the Semien and Kennedy cases cited in this article.


Mark D. DeBofsky is a shareholder of DeBofsky Sherman Casciari Reynolds P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage issues.

The original article was published in the Chicago Daily Law Bulletin on April 15, 2021.

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