Although couched in a ruling on a motion to reconsider an order compelling MetLife to respond to plaintiff’s discovery requests, a recent thoughtful opinion in Hogan-Cross v. Metropolitan Life Ins.Co., 2008 U.S.Dist.LEXIS 58027 (S.D.N.Y. July 31), a disability benefit dispute, explains the paradigm shift in ERISA litigation created by a recent Supreme Court ruling. Judge Lewis Kaplan explores the overall impact of Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008), and how the impact of that ruling on the scope of judicial claim review goes beyond the Supreme Court’s primary conclusion finding insurers that both administer benefit claims and pay claims out of their own funds are conflicted. Prior to Glenn, courts almost universally denied discovery and limited judicial review to the so-called ”administrative” record. Kaplan announced a new regime, though.
”MetLife’s notion that discovery is inappropriate in this case because ‘there is no evidence in the administrative record of any actual conflict,’ a dubious proposition to begin with before Glenn, is misguided,” Kaplan wrote. ”The question here, as in all cases, is whether the discovery sought is relevant in itself or ‘appears reasonably calculated to lead to the discovery of admissible evidence.”’
The court then turned its attention to the specific discovery requests. For example, the court noted the requests were focused on the approval/denial rate of claims submitted by IBM employees and statistics regarding MetLife’s benefit termination rate. While the court acknowledged that high denial rates may simply be due to a high proportion of non-meritorious claims or that high rates of terminations could be accounted for by claimants’ recovery from serious illness or injury, the court nonetheless refused to deny discovery under the relevance standard set forth in Rule 26 of the Federal Rules of Civil Procedure, finding: ”Evidence of high rates of benefit denials or terminations reasonably could lead to further inquiry as to the reasons for those actions, which might prove either benign or malignant.”
The court took a similar position with respect to discovery aimed at compensation paid to consultants and employees involved in benefit terminations. Again, the court found that such evidence may not prove much of anything; however, the court pointed out: ”It could matter a great deal, for example, if an outside reviewer derived all or most of his or her income from MetLife, particularly if that reviewer frequently recommended denial or termination of benefits.”
Despite the contrary finding in Abromitis v. Continental Casualty Co., 261 F. Supp. 2d 388 (W.D.N.C. 2003), aff’d without consideration of the point, 114 Fed. App’x. 57 (4th Cir. 2004), that the compensation of an outside consultant was irrelevant, the court rejected MetLife’s citation of that case because it was issued pre-Glenn and because Judge Kaplan found the opinion unpersuasive.
The court explained: ”… the existence, nature, extent, and effect of any conflict of interest are relevant considerations. A consultant may be compensated in a manner and/or to an extent that creates a motive to recommend against the payment of benefits because such recommendations are believed to serve the interests of the plan administrator. If a decision maker knowingly were to rely on advice from such a consultant, it would be only common sense to say that the decision would command less deference than one made on the basis of unbiased advice or in ignorance of the bias.”
The court added that the viewpoint expressed in Abromitis ”is blind to potentially important information that, at least in some cases, may be critical to the fair and informed review of benefit claims.” Moreover, the court found that whatever rationale may have supported Abromitis was eviscerated by Glenn, which ”abrogated the limitations on discovery unique to ERISA cases that were imposed or applied by such cases as Abromitis.”
The court also highlighted the guidance offered by Glenn with respect to how a court is to evaluate a conflict. Because the effect of conflict may play a greater role in the claim adjudication, the court determined: ”Information bearing on the manner in which a conflicted plan administrator compensates outside consultants could be highly pertinent. Maintenance of compensation arrangements that create economic incentives for consultants to recommend denial or termination of benefits would have a material bearing on the likelihood that the administrator’s conflict affects its benefit determinations.”
Finally, while acknowledging the expense of discovery, Kaplan emphasized the countervailing, but paramount considerations inherent in ERISA litigation.
”No one denies that speedy, simple, and inexpensive determination of actions seeking review of benefit determinations is desirable,” Kaplan wrote. ”Eliminating or sharply limiting discovery would serve that goal. But that is not the only goal. Congress enacted ERISA to provide unsuccessful claimants with a federal forum for the fair determination of their claims. Pretrial discovery is a part of the process for which Congress opted.”
Anticipating criticism, the court then assuaged fears that ERISA litigation would spin out of control, reminding litigants that judges retain the power to limit discovery. Thus, the amount of discovery allowed will be tailored to fit the circumstances of individual cases, but ”Blunderbuss attempts to cut off discovery on the ground that it never or rarely should be permitted in these cases, whatever their merits before Glenn, no longer have merit.”
Clearly, Kaplan recognizes the importance of the Glenn ruling, the underlying purpose of the ERISA law, and its future impact on ERISA litigation.
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This article was initially published in the Chicago Daily Law Bulletin.