The recent Geer v. Hartford Life & Accid.Ins.Co., 2009 U.S.Dist.LEXIS 48332 (E.D.Mich. June 9), is one of the more thoughtful and carefully analyzed discovery rulings issued in the wake of Metro. Life Ins.Co. v. Glenn, 128 S.Ct. 2343 (2008), which dealt with the structural conflict inherent in an insurer’s dual role as claim administrator/payor of ERISA benefit claims. Although the court acknowledged “[t]he role of discovery in the process of weighing a conflict remains somewhat obscure,” the court nonetheless used several precedential rulings as a guide. First, the court cited Perry v. Simplicity Eng’g, 900 F.2d 963 (6th U.S. Circuit Court of Appeals, 1990), which found that while the scope of review in ERISA cases is generally limited to the claim file, evidence outside the so-called “administrative record” may be considered if that evidence “is offered in support of a procedural challenge to the plan administrator’s decision, such as an alleged lack of due process afforded by the administrator or alleged bias on its part.”
Then, in Calvert v. Firstar Finance Inc., 409 F.3d 286 (2005), the 6th Circuit noted the potential structural conflict resulting from an insurer’s dual roles as plan administrator and benefit payor, and suggested:
“The court would have a better feel for the weight to accord this conflict of interest if Calvert had explored the issue through discovery. While Calvert’s counsel asserted that it was his understanding that discovery is never permissible in an ERISA action premised upon a review of the administrative record, an exception to that rule exists where a plaintiff seeks to pursue a decision maker’s bias. See e.g. Wilkins v. Baptist Healthcare Sys. Inc., 150 F.3d 609, 618 (6th Cir. 1998).”409 F.3d at 293 n.2.
Subsequently, in Kalish v. Liberty Mutual/Liberty Life Assur. Co., 419 F.3d 501 (6th Cir. 2005), although no discovery had been taken, the 6th Circuit ruled for the plaintiff in a disability benefit dispute after finding “an administrator’s decision based on the work of a doctor in its employ must be viewed with skepticism.” The court remarked, though, that it had not been presented with more than a conclusory allegation of bias, and there was no specific evidence the physician “had consistently rendered opinions favorable to the administrator.” Yet the court reiterated that discovery could have been helpful.
Nonetheless, the court identified a tension in 6th Circuit rulings – those that suggest a general right to discovery in cases involving a structural conflict, and other rulings allowing discovery only if the plaintiff is able to make a preliminary showing of a due process violation or other evidence of bias. For example, in Putney v. Medical Mutual of Ohio, 111 F.Appx. 803 (6th Cir. 2004), the 6th Circuit affirmed a district court ruling disallowing discovery where the plaintiff made no preliminary showing of bias or a due process denial. And in Huffaker v. Metropolitan Life Insurance Co., 271 F.Appx. 493, 503-504 (6th Cir. 2008), the 6th Circuit cited Putney as the basis for its conclusion that in that ruling, “we determined that a claimant must make a predicate showing with respect to an alleged procedural violation to be granted further discovery.”
Because of the Glenn ruling, though, since the Supreme Court directed that the conflict must always be considered regardless of whether a showing is made that the conflict infected the determination, the court held discovery would be appropriate. The court further pointed to Glenn’s finding that the conflict “should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.” 128 S.Ct. at 2351. Thus, while not addressing discovery per se, the Glenn ruling implies the necessity of discovery in order for the court to properly weigh the significance of a conflict.
However, the court was also careful to announce that it rejected the idea that discovery is automatic merely because of the “inherent decision maker/payor conflict.” Instead, discovery would be available only “where a plaintiff has provided sufficient initial facts suggesting a likelihood that probative evidence of bias or procedural deprivation would be developed.” The court thus rejected the plaintiff’s allegation that discovery was appropriate on the issue of whether the insurer ignored significant portions of the medical evidence submitted. The court pointed out that the record itself would reveal if that were the case, and “to the extent that insufficient regard was paid to material in the record, there is no need for discovery to demonstrate that lack of respect.” The court also rejected allowing discovery based on a bare allegation that surveillance videos had been selectively edited; and while the plaintiff claimed the insurer disregarded its own standards in evaluating the claim, there was no showing as to what standards were allegedly violated, and thus discovery on that issue was also denied.
The plaintiff was successful, though, in obtaining permission to obtain discovery in relation to the physicians who reviewed the claim file along with the business relationship between the insurer and the organization that hired the reviewing doctors, University Disability Consortium. The court further allowed limited discovery as to the history of claims made under the policy at issue over the 10 years preceding the plaintiff’s claim. Also, limited discovery was allowed as to bias based on the insurer’s apparent disregard of a Social Security disability award.
This is not the first time that courts have allowed plaintiffs to probe the relationship between Hartford and University Disability Consortium, an organization that works closely with Hartford in assigning doctors to review disability claims. In Jacoby v. Hartford Life and Accid.Insur.Co., 2009 U.S.Dist.LEXIS 6498 (S.D.N.Y. Jan. 23), the court allowed broad discovery into that relationship; and in Caplan v. CNA Financial Corp., 544 F.Supp.2d 984 (N.D.Cal. 2008), the court permitted discovery that showed a particular reviewing doctor had issued reports favoring denial of disability benefits in 193 out of 202 files reviewed in slightly more than a two-year period.
Some of the areas in which the court denied discovery, though, seem somewhat surprising. The insurer denied benefits in part based on only 10 minutes of surveillance video taken over the course of several days. That begs the question of what may have been selectively edited out of the video furnished to Hartford. Indeed, in a recent ruling, Nash v. Life Ins. Co. of N. Am., 2009 U.S. Dist. LEXIS 36285 (N.D.Ill. April 29), the court compelled disclosure of such evidence pursuant to a subpoena issued to the company that performed the surveillance finding a request for the outtakes relevant.
Likewise, based on Glenn’s ruling that insurers evaluating ERISA claims are to employ “higher-than-marketplace quality standards” to assure accurate claim determinations (128 S.Ct. at 2350), it would have been appropriate to grant the plaintiff some leeway to depose the claims personnel to determine whether such standards were applied, and whether the insurer’s practices may have been deficient. A prominent attorney recently wrote a book describing how cases are won in such a manner. R. Friedman and P. Malone, Rules of the Road – A Plaintiff Lawyer’s Guide to Proving Liability(Trial Guides LLC 2006).
The Supreme Court’s emphasis on accuracy, andGlenn’s citation to Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S. Ct. 456, 95 L. Ed. 456 (1951), must also be viewed as significant in relation to this issue since Universal Camera explained that courts must do more than simply assume the record compiled by an agency is sufficient based on an appearance of regularity. Courts must now take responsibility for assessing the reliability of evidence on which the claim decision is based; and the 6th Circuit has taken the lead in admonishing that courts adjudicating ERISA cases are to assess both “the quality and quantity of the medical evidence and the opinions on both sides of the issues.” Glenn v. Metro.Life Ins.Co., 461 F.3d 660, 666 (6th Cir. 2006) (citation omitted); aff’d 128 S.Ct. 2343 (2008) (emphasis added). The only way in which courts can adequately perform that duty in their review of ERISA claims is to allow discovery.
Note: My firm was involved in the Nash case cited in this article.
This article was initially published in the Chicago Daily Law Bulletin.