Opinion
Case No. CV 14-03021 DDP (PJWx)
07-29-2016
LUIS ESCALANTE, on behalf of himself and all others similarly situated, Plaintiff, v. CALIFORNIA PHYSICIANS' SERVICE dba BLUE SHIELD OF CALIFORNIA, Defendants.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING MOTION IN PART
As described in this court's earlier Orders, Plaintiff Luis Escalante ("Plaintiff") was covered by a group health insurance policy issued by Defendant Blue Shield of California ("Defendant" or "Blue Shield"). (Decl. Michael C. Godino, Ex. 1 at 2.) Plaintiff alleges that he suffers from degenerative disc disease ("DDD") and that his doctor recommended he undergo artificial disc replacement ("ADR") surgery instead of a more traditional lumbar fusion. (Compl. at ¶ 16-17.) Plaintiff requested authorization from Blue Shield to undergo ADR surgery, but Blue Shield denied Plaintiff's request after finding ADR surgery was excluded from coverage as investigational because "the efficacy of [ADR] has not been validated by the peer reviewed literature." (Decl. Godino, Ex. 28 at 484.) Plaintiff appealed the decision to both Blue Shield and the California Department of Managed Health Care, and was again denied. (Id., Ex. 30 at 494.) Plaintiff brought suit, on behalf of a now certified class, challenging Blue Shield's ADR policy under the Employee Retirement Security Act of 1974 ("ERISA" ). Blue Shield now moves for summary judgment.
The plans at issue exclude services that are "Experimental or Investigational in Nature." Those services are defined to include products and services "which are not recognized in accordance with generally accepted professional medical standards as being safe and effective . . . ."
II. Legal Standard
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the moving party does not bear the burden of proof at trial, it is entitled to summary judgment if it can demonstrate that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.
Once the moving party meets its burden, the burden shifts to the nonmoving party opposing the motion, who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. Summary judgment is warranted if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," and material facts are those "that might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. There is no genuine issue of fact "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
It is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir.1996). Counsel has an obligation to lay out their support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001). The court "need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found." Id.
III. Discussion
A. Standard of Review
There is no dispute that the plan at issue here is governed by the Employee Retirement Security Act of 1974 ("ERISA" ). ERISA "permits a person denied benefits under an employee benefit plan to challenge that denial in federal court." 29 U.S.C.A. § 1132(a)(1)(B); Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). "In determining the appropriate standard of review for actions under [ERISA], we are guided by principles of trust law." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Courts should "analogize a plan administrator to the trustee of a common-law trust" and "consider a benefit determination to be a fiduciary act (i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries)." Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008).
"Principles of trust law require courts to review a denial of plan benefits 'under a de novo standard' unless the plan provides to the contrary," in which case a more deferential standard of review is appropriate. Id. at 111 (quoting Firestone, 489 U.S. at 115). Therefore, the "starting point" in determining the applicable standard of review is whether the terms of the ERISA plan "unambiguously grant discretion to the administrator." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962-63 (9th Cir. 2006). When the plan does not confer discretionary authority to the plan administrator to determine benefit eligibility or interpret the terms of the plan, a court must review the denial of benefits de novo (the default standard of review). Id. at 963; see Metropolitan Life Ins. Co., 554 U.S. at 111. "But if the plan does confer discretionary authority as a matter of contractual agreement, then the standard of review shifts to abuse of discretion." Abatie, 458 F.3d at 963.
Here, the plan "Contract" is defined as the contract between Blue Shield and Plaintiff's employer, Provident Health. (Decl. Godino, Ex. 1 at 6, 8; see generally decl. Leslie Crawford, Ex. 3 at 17.) That contract expressly incorporates the plan's Evidences of Coverage ("EOC"). (Decl. Crawford, Ex. 3 at 21.) The "Plan Interpretation" section of Plaintiff's plan's EOC provides that "Blue Shield shall have the power and discretionary authority to construe and interpret the provisions of the contract, to determine the benefits of the Contract, and determine eligibility to receive Benefits under the Contract." (Decl. Godino, Ex. 1 at 5.) All of the class members' EOCs include this provision. (Id.; Decl. Joan Russo, Ex. 4 ¶ 3.)
Plaintiff alleges that the Summary Plan Description ("SDP") contradicts the "Plan Interpretation" section of the EOC by designating Plaintiff's employer, not Blue Shield, as the "Plan Administrator" with sole fiduciary discretionary authority over the plan. (Opp. at 14:19-24; decl. Luis Escalante, Ex. 1 at 11.) At the same time, however, the SDP's "Welfare Plan Information" section states that Blue Shield has discretionary authority over all Health Maintenance Organization medical plans in California, such as Plaintiff's. The section provides:
Blue Shield of California is the named claims fiduciary for the Health Maintenance Organization medical plans in California, as defined in ERISA. Blue Shield . . . has discretionary authority to make decisions on claim appeals and to interpret the terms of the Health Maintenance plans.(Supp'l. Decl. Godino, Ex. 34 at 546.)
Regardless, the SDP, upon which Plaintiff relies, itself provides that "[i]f any conflicts arise between this summary and the Plan documents and contracts, the Plan documents and contract as interpreted by the Plan Administrator and fiduciaries will govern." (Decl. Escalante, Ex. 1 at 10 (emphasis in original).) "Plan documents and contract" refers to the contract between Plaintiff's employer and Blue Shield. That contract expressly incorporates the EOC, which identifies Blue Shield, by name, as having the discretionary authority to interpret the contract and make benefits determinations. Accordingly, this court will review Blue Shield's denial of benefits for abuse of discretion.
B. Scope of Review and Level of Skepticism
Blue Shield argues that this court should review Blue Shield's coverage decision for abuse of discretion, tempered by a low degree of skepticism or no skepticism at all. The manner in which a court applies the abuse of discretion standard of review depends on whether the plan administrator is operating under a conflict of interest. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009). Where there is no conflict, "judicial review of a plan administrator's benefits determination involves a straightforward application of the abuse of discretion standard" and the plan administrator's decision can be upheld if it is "grounded on any reasonable basis." Id. at 629. "In other words, where there is no risk of bias on the part of the administrator, the existence of a 'single persuasive medical opinion' supporting the administrator's decisions can be sufficient to affirm, so long as the administrator does not construe the language of the plan unreasonably or render its decision without explanation." Id. at 629-30 (quoting Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1179 (9th Cir. 2005)); see Conkright v. Frommert, 559 U.S. 506, 130 (2010).
Where, however, the plan administrator operates under a conflict of interest, the abuse of discretion standard "requires a more complex analysis," in which the reviewing court must weigh the conflict as one factor in determining whether there was an abuse of discretion. Id. at 629-630, 632. An insurer that acts as both the plan administrator and the funding source for benefits operates under a structural conflict of interest. Abatie, 458 F.3d at 965 (citing Tremain v. Bell Indus. Inc., 196 F.3d 970, 976 (9th Cir. 1999)). A structural conflict of interest exists because, where the plan administrator is also the insurer, "benefits are paid out of the administrator's own pocket, so by denying benefits, the administrator retains money for itself." Montour, 588 F.3d at 630. Blue Shield acknowledges that a structural conflict of interest exists here.
Where a conflict exists, abuse of discretion review must be informed by the nature, extent and effect the conflict has on the decision-making process, discounting the deference given to the plan administrator's decision accordingly. Abatie, 458 F.3d at 967; Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 674 (9th Cir. 2011). This review requires "a case-by-case balance," in which "[a] district court, when faced with all the facts and circumstances, must decide . . . how much or how little to credit the plan administrator's reason for denying insurance coverage." Abatie, 458 F.3d at 968. The Ninth Circuit has described this multi-factor balancing test as follows:
A court may weigh a conflict more heavily if, for example, the administrator provides inconsistent reasons for denial, . . . fails adequately to investigate a claim or ask the plaintiff for necessary evidence, . . . fails to credit a claimant's reliable evidence, . . . or has repeatedly denied benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record.Id. at 968-69; See also Montour, 588 F.3d at 630 ("Other factors that frequently arise in the ERISA context include the quality and quantity of the medical evidence, whether the plan administrator subjected the claimant to an in-person medical evaluation or relied instead on a paper review of the claimant's existing medical records, whether the administrator provided its independent experts 'with all of the relevant evidence,' and whether the administrator considered a contrary [ agency] determination.").
Review for abuse of discretion is limited to the record before the plan administrator. Abatie, 458 F.3d at 970; Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1110 (9th Cir. 2003). However, a reviewing court "may consider evidence beyond that contained in the administrative record that was before the plan administrator" to determine "how much weight to give a conflict of interest under the abuse of discretion standard." Abatie, 458 F.3d at 970. A court's subsequent abuse of discretion analysis must then be "tempered by skepticism commensurate with the plan administrators' conflict of interest," while resting solely upon the administrative record. Id. at 955, 970.
In arguing for heightened skepticism, Plaintiff points to extra-record evidence that (1) the ProDisc L received Pre-Market Approval ("PMA") from the FDA, (2) "Blue Shield has repeatedly denied lumbar ADR as investigational[,]" and (3) Blue Shield provided inconsistent reasons to justify its lumbar ADR policies. (Opp. at 15.) This court's analysis of Blue Shield's bias is complicated somewhat by Plaintiff's insistence that all of his extra-record evidence is intended to demonstrate not only bias, but also that Blue Shield's decision is "unsupportable" on the merits. (Opp. at 23:24-23:3.) For the reasons stated above, such evidence may only be considered in establishing a level of skepticism with which to approach a later merits determination. Abatie, 458 F.3d at 970.
In 2006, the FDA granted the ProDisc L PMA as a Class III medical device. (Decl. Branko Kopjar at ¶ 11.) The FDA granted PMA after a two-year study that involved 286 subjects and found that lumbar ADR was superior to fusion in "properly chosen patients" by "multiple clinical criteria," including overall success, function and pain. (Id. at ¶¶ 64, 65; decl. Godino, Ex. 9 at 134.) PMA is the most stringent and difficult regulatory approval to obtain from the FDA. (Decl. Kopjar at ¶ 11.) The FDA must approve the study design before granting approval. (Id. at ¶ 12.) Plaintiff argues that the conflict between the FDA's conclusions and Blue Shield's shows bias on the latter's part. Although, as this Court stated in its Order denying Plaintiff's Motion for Summary Judgment, the insurance plan does not import or adopt FDA definitions or standards, Blue Shield's decision to rely upon the 2007 TEC assessment and CTAF conclusions, despite FDA approval and the underlying two year study, is consistent with bias. (Order Denying Plaintiff's Motion for Summary Judgment at 6.) Although the TEC and CTAF assessments discounted the two-year study, Plaintiff has submitted evidence of ties between Blue Shield and TEC and CTAF that call into question the independence of those organizations and the validity of their criticisms of the two-year study. On the question of bias, such evidence must be viewed "through the lens of the traditional rules of summary judgment" in favor of the non-moving party. Nolan v. Heald College, 551 F.3d 1148, 1155 (9th Cir. 2009).
Plaintiff has also submitted evidence that more than 100,000 ProDisc-L devices have been implanted worldwide. (Decl. Jack E. Zigler at ¶ 25.) Lumbar ADR is performed at several reputable medical centers across the country, including Stanford, Cedars-Sinai, the University of California at San Francisco, the University of California at San Diego, and Yale. (Id. at ¶¶ 26, 31.) The North American Spine Society ("NASS") recommends coverage for lumbar ADR when certain "stringent" criteria are met. (Id., Ex. 7 at 90-91.) The American Pain Society gives lumbar ADR a "B" grade for the first two-years following implantation and an "I" grade thereafter, which means that "[t]he panel found insufficient evidence to recommend for or against the intervention." (Id., Ex. 24 at 502). The International Society for the Advancement of Spine Surgery (ISASS), an industry group, recommends coverage for lumbar. (Supp'l Decl. Godino, Ex. 43 at 624-25.)
Other studies, including those by Wei et al., Thavaneswaran et al., and Rao et al., conclude that lumbar ADR is superior to, or similar to, fusion across various metrics in their respective meta-analyses studies. (Decl. Kopjar, Ex. 12 at 212; Ex. 13 at 223; Ex. 14 at 230.) Granted, Wei et al. note "problems" with the underlying trials, and both Thavaneswaran et al. and Rao et al. note concerns about the long-term consequences of lumbar ADR. (Id., Ex. 12 at 221; Ex. 13 at 226; Ex. 14 at 238.) It is unclear to the court whether Blue Shield had access to, asked for, or addressed, this evidence, the credibility of which is itself not entirely clear, and is therefore more properly addressed at trial.
Plaintiff further asserts, and Blue Shield does not appear to dispute, that Blue Shield has repeatedly denied ADR-related benefits to plan participants. Plaintiff argues that these refusals weigh in favor of heightened skepticism. (Opp. at 15.) These repeated, and indeed blanket, denials are, perhaps, unsurprising in light of Blue Shield's lumbar ADR policy. At the same time, however, the Abatie court specifically cited repeated denials of benefits as indicative of bias where an insurer denies benefits "by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record." Abatie, 458 F.3d at 968-69. Given the uncertainty about the extent of the record here (discussed further infra), let alone the weight of the evidence therein, this factor cannot weigh in favor of summary judgment on the question of bias.
Lastly, Plaintiff contends that Blue Shield "has provided 'inconsistent reasons' to justify its policy on lumbar ADR during the class period." (Opp. at 18:20-21.) As discussed in further detail below, Blue Shield did admittedly change the form of and, indeed, the evidentiary basis for, its ADR policy. Although all forms of the policy consistently deemed ADR to be investigational, the reasons motivating the changes are in dispute, and could support an inference of bias against coverage.
In sum, the broader set of evidence beyond the administrative record, taken in the light most favorable to plaintiff, could support an inference that Blue Shield's coverage decisions were tainted by more than a modicum of bias. Because triable issues remain, Blue Shield's motion for summary judgment is denied, insofar as it seeks a determination that this court will review Blue Shield's decision for abuse of discretion with little or no skepticism.
C. Whether Defendant Abused Its Discretion
Because triable issues remain as to the level of skepticism warranted here, this Court cannot grant summary judgment regarding Blue Cross' abuse of discretion, or lack thereof. See Montour, 588 F.3d at 631; See also Burke v. Pitney Bowes Inc. Long-Term Disability Plan, 544 F.3d 1016, 1027 (9th Cir. 2008). Blue Shield has, however, submitted evidence suggesting that it did not abuse its discretion. Blue Shield has a process to determine whether medical devices are "recognized in accordance with generally accepted professional medical standards as being safe and effective," or are excluded from coverage as "investigational." (Decl. Godino, Ex. 12 at 164, 167.) Products and services that are not so recognized fall under the plan's definition of "Experimental or Investigational in Nature." Blue Shield's technology assessment ("TA") policy sets forth five criteria for evaluating devices and other technologies:
[1] The technology must have final approval from the appropriate government regulatory bodies.
***
[2] The scientific evidence must permit conclusions concerning the effect of the technology on health outcomes . . . .
• The evidence should consist of well-designed and well-conducted investigations published in peer-reviewed journals. The quality of the body of studies and the consistency fo the results are considered in evaluating the evidence.
• The evidence should demonstrate that the technology can measure or alter the physiological changes related to a disease, injury, illness, or condition. In addition, there should be evidence or a convincing argument based on established medical facts that such measurement or alteration affects health outcomes.
[3] The technology must improve the net health outcomes.
• The technology's beneficial effects on health outcomes should outweigh any harmful effects on health outcomes.
(Id.)
[4] The technology must be as beneficial as any established alternatives.
***
[5] The improvement must be attainable outside investigational settings.
***
Blue Shield implements written medical policies for those devices based on its determinations regarding these five criteria. (Id. at 164-66, 168, 171-72; id., Ex. 13 at 193:17-194:2.)
At all times during the class period, Blue Shield has had a medical policy defining lumbar ADR as investigational and, consequently, excluded from coverage. (Decl. Godino, Ex. 7, 14-17.) Up until July 2014, Blue Shield's policies were adopted using a multi-step process. A team of nurses and a licensed physician (the medical director assigned to that policy) first conducted a review of the available evidence on the device in question and created a draft policy. (Decl. Godino, Ex. 13 at 182:23-25, 183:3-5, 189: 2-6; Ex. 12 at 166.) The proposed policy and all of the materials cited in it were then sent to the Blue Shield Medical Policy Committee who reviewed the materials, applied the five criteria outlined above, and decided whether they agreed with the draft policy. (Id., Ex. 13 at 178:9-179:10, 182:17-183:5, 183:22-25, 184: 19-23; 189:2-6; Ex. 12 at 166.) The assigned medical director then presented the draft policy at the next quarterly committee meeting where the committee voted on whether to approve the proposed policy. (Id., Ex. 13 at 176:21-181:12, 182:23-183:2; Ex. 12 at 166.) As of July 2014, Blue Shield bases its medical policies, including its policy on lumbar ADR, on medical reference policies created by the Blue Cross Blue Shield Association ("BCBSA"). (Id., Ex. 12 at 166-67; Ex. 13 at 184:18-185:17.)
From April 18, 2010 (the start of the class period) through March 4, 2012, Blue Shield's lumbar ADR policy stated that: "Artificial intervertebral discs are considered investigational for all indications." (Id., Ex. 14 at 222 (emphasis in original).) This policy considered 25 references, but relied largely on a 2007 Technology Evaluation Center ("TEC") Assessment issued by BCBSA, as well as assessments issued by the California Technology Assessment Forum ("CTAF"). (Id., Ex. 14 at 222-26, 230-32; Ex. 12 at 166.)
The 2007 TEC Assessment was prepared by BCBSA's Center for Clinical Effectiveness, which employs the same five technology assessment criteria as Blue Shield. (Id., Ex. 20 at 340-41; Ex. 18 at 317:22-318:19; Ex. 21 at 358-59, Ex. 5 at 42-43.) The 2007 TEC Assessment criticized a clinical study that measured the safety and effectiveness of the ProDisc-L, an artificial disc used in lumbar ADR procedures, two years post-surgery ("two-year study"). (Decl. Branko Kopjar at ¶ 11; decl. Godino, Ex. 21 at 357-59, 375.) The 2007 TEC Assessment also analyzed results from six case series reports and one small non-randomized comparison study of the ProDisc-L. (Decl. Godino, Ex. 21 at 371-72.) Based on its review, the 2007 TEC Assessment found that lumbar ADR failed criteria 2, 4 and 5 and recommended that it remain investigational. (Id., Ex. 21.)
This two-year study led to the Food and Drug Administration's ("FDA") approval of the ProDisc-L. (Decl. Kopjar at ¶ 12.) The two-year study involved 286 subjects and found that lumbar ADR was superior to fusion in "properly chosen patients" by "multiple clinical criteria," including overall success, function and pain. (Id. at ¶¶ 64, 65; decl. Godino, Ex. 9 at 134.)
CTAF is an independent organization, although it receives a donation from the Blue Shield of California Foundation, which is a fundraising wing of Blue Shield for charitable purposes. (Id., Ex. 13 at 196:8-197:12.) CTAF's February 2007 Assessment on lumbar ADR used the same five technology assessment criteria as Blue Shield and BCBSA, concluding that criteria 1 through 3 were met, but not criteria 4 or 5. (Id., Ex 6. at 66-81.) The 2007 CTAF Assessment also criticized the two-year study regarding blinding, lack of information on subject drop-outs and lack of information regarding "unknown . . . long-term risks." (Id. at 79.)
The CTAF stated that it remained unclear whether the "possible benefits of disc replacement with an artificial disc outweigh the attendant surgical risks and the possibility of long-term device failure." (Decl. Godino, Ex. 6 at 80.)
From March 5, 2012 through December 14, 2014, Blue Shield merged its lumbar ADR and spinal fusion policies. (Id., Ex. 15-16.) The combined policy stated: "Based on the lack of long term efficacy and safety in comparison to standard spinal fusion techniques, lumbar artificial disc replacement (arthroplasty) is considered investigational." (Id., Ex. 15 at 238; Ex. 16 at 259 (emphasis in original).) Blue Shield based its spinal fusion medical policy on a policy issued by Triad Healthcare Musculoskeletal Health Services ("Triad"), a company with which Blue Shield collaborates. (Id., Ex. 15 at 235; Ex. 13 at 214:14-20.) Triad's own policy shows that it had reviewed 38 published materials in formulating the ADR section of its policy. (Id., Ex. 22 at 397-401; Ex. 23 at 420-24.)
From 2014 to 2015, Blue Shield maintained its previous policy statement, implementing only minor changes. (Id., Ex. 17 at 298; Ex. 7 at 92.) BCBSA also published an updated TEC Assessment that analyzed a study that followed the subjects of the two-year study out to five years ("five-year study"). (Decl. Kopjar at ¶ 13.) The 2014 TEC Assessment criticized the five-year study, concluding that there was a high risk of bias as well as lack of clarity in how the non-inferiority margin was chosen and why there was a "large loss to follow-up" in the fusion group. (Decl. Godino, Ex. 5 at 41, 49-50, 55.) Consequently, BCBSA concluded that the evidence failed to satisfy the second criterion of BCBSA's Medical Policy Program policy, which is identical to the second criterion of Blue Shield's TA policy, because the evidence was not "well-designed and well-conducted." (Id., Ex. 20 at 343; Ex. 12 at 167; Ex. 5 at 42-43.)
Blue Shield's most recent medical policy, effective May 29, 2015, compared the success of lumbar ADR using various artificial disc devices. (Id., Ex. 7 at 92.) The policy noted that only two of the devices, the Pro-Disc L and the Charite, received FDA approval. (Id. at 93.) The Charite, however, has since been withdrawn from the market, and its successor, the INMOTION, is not marketed in the United States. (Id. at 101.)
Plaintiff relies largely upon extra-record evidence to argue that the BSBSA, CTAF, and Triad criticisms of ADR are unfounded. Although, as discussed above, this evidence is pertinent to the question of bias, this court cannot consider any such evidence for purposes of analyzing whether Blue Shield abused its discretion Abatie, 458 F.3d at 970. At the same time, however, it is unclear to the court whether all of Blue Shield's evidence is itself admissible. As Blue Shield acknowledged at argument, the scope of an administrative record in a class action regarding a blanket policy is somewhat different than in a traditional, single-plaintiff action for disability benefits. Blue Shield acknowledges that it did its best to submit relevant excerpts from all of the relevant medical policies, the evidence underlying those policies, assessment criteria and conclusions, and "some very minimal deposition testimony."
Although Plaintiff's assertions that BCBSA failed to follow its own internal guidelines, and that Blue Shield blindly adopted BCBSA findings without any review may be supportable with evidence within the record, Plaintiff does not support these arguments with any citation to the record. (Opp. at 20.) --------
Plaintiff, in response to Blue Shield's objections to Plaintiff's introduction of extra-record evidence on the merits, contends that Blue Shield, too, relies upon extra-record evidence. This court cannot determine, on the record and briefing currently before it, the confines of the administrative record or whether all of the evidence submitted falls within them. See Abatie, 458 F.3d at 970; Montour, 588 F.3d at 632 n.4. ("In the ERISA context, the administrative record consists of the papers the insurer had when it denied the claim."); Opeta v. Northwest Airlines Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007) (explaining, in context of de novo review, that "a district court should not take additional evidence merely because someone at a later time comes up with new evidence . . . . [I]n most cases, only the evidence that was before the plan administrator at the time of determination should be considered." (internal quotations and citation omitted)); but see Burke, 544 F.3d at 1028 ("[T]he district court may consider outside the administrative record if it determines that procedural irregularities prevented the full development of the administrative record.").
Thus, despite Blue Shield's evidence that it did not abuse its discretion and Plaintiff's lack of intra-record evidence, the court must deny Blue Shield's motion insofar as it relates to the decision on the merits because (1) triable issues remain regarding the extent and effect of Blue Shield's structural bias and (2) it is unclear whether the evidence upon which Blue Shield relies is part of the administrative record to which this Court must limit its merits review. // // // // // // // //
IV. Conclusion
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. The motion is granted insofar as it seeks a determination that abuse of discretion is the proper standard of review. The motion is denied in all other respects. IT IS SO ORDERED. Dated: July 29, 2016
/s/
DEAN D. PREGERSON
United States District Judge