Opinion
CIVIL NO. 99-1260 MV/LFG
June 21, 2000
ORDER ON PLAINTIFFS MOTION TO COMPEL
THIS MATTER is before the Court on Plaintiff Bob F. Turners (Turner) Motion to Compel [Doc. 32]. This is an ERISA case and discovery in ERISA cases is significantly limited.
Indeed, in this case, the Court already restricted discovery due to prevailing law. Chambers v. Family Health Plan Corp., 100 F.3d 818 (10th Cir. 1996). See Docket No. 29.
The Court previously authorized discovery of the information before the plan administrator at the time the decision was made, details concerning the existence of an ERISA plan, and a determination of whether the administrator or the fiduciary empowered to interpret the plan was operating under a conflict of interest.
Turners present motion seeks some information within the scope of the Courts prior ruling and some information that is outside the scope of the Courts prior rule. In Interrogatory No. 1, Turner seeks information on Dr. Eugene Truchelut.
The information sought includes educational background; professional training; work history; professional presentations and publications; a description of all of his training and practice in the area of cardiology; a description of the relationship between Dr. Truchelut and Continental Casualty Company or any DNA affiliated entity; an identification of the number of claims reviewed by Dr. Turtle for Continental Casualty Company or any CNA affiliated entity for each of the five years preceding the denial of the claim in this case; an identification of the rate of compensation received by Dr. Truchelut for his review of claims and the total dollar amount received by Dr. Truchelut from Continental Casualty Company or any CNA affiliated entity for each of the five years preceding the denial of the claim in this case.
Defendant objected to several subparts, but agreed to provide Dr. Trucheluts resume. The resume was responsive to subparts a, b, c, d and e of the request for information. Defendant also provided information responsive to subpart f, describing the relationship between Dr. Truchelut and Continental Casualty Company.
Defendant declined, however, to provide information concerning the number of claims reviewed by Dr. Truchelut for CNA or affiliated entities or the rate of compensation he received.
The Court believes that both inquiries are proper. Indeed, the Tenth Circuit only recently discussed the scope of discovery in conflict of interest cases relating to a plan administrators actions in approving or disapproving benefits. Pitman v. Blue Cross Blue Shield of Oklahoma, ___ F.3d ___, 2000 WL 663133 (10th Cir. Okla. May 22, 2000).
Thus, it is clear that even in ERISA cases handled under an arbitrary and capricious standard, some discovery is appropriate.
The interest, bias or prejudice of a witness is a fertile ground of inquiry. Here, if there is evidence demonstrating that Dr. Truchelut receives a significant amount of income from Continental Casualty Company or a CNA affiliate, or that he has a significant financial interest tied to the denial of benefits, there may well be a question concerning whether fear of loss of that income would affect the exercise of his independent judgment. Because a conflict of interest can be an appropriate area of discovery in ERISA cases and further because a conflict may not be apparent on the face of the administrative record, Kaus v. Standard Ins. Co., 162 F.3d 1173 (Tab 6, text in Westlaw), 1998 WL 778055, at *1 (10th Cir. Nov. 5, 1998), the Court determines that subparts g and h of Interrogatory No. 1 are proper and Defendant should answer these questions.
The Court recognizes that conflicts of interest and procedural irregularities will usually be apparent on the face of the record, and, therefore, district courts should rarely permit discovery. Farley v. Arkansas Blue Cross Blue Shield, 147 F.3d 774, 776 n. 6 (8th Cir. 1998).
Interrogatory No. 2 tracks the information sought in Interrogatory No. 1, but the respondent is different, Dr. Al Ziffer. The Courts ruling remains the same. Defendant should provide more information beyond the resume which was provided for Dr. Ziffer, and should answer subparts g and h.
In Request for Production No. 2, Turner seeks an order compelling Defendant to produce all internal materials [that were] available for consultation by you at the time the claim in this case . . . . This request goes beyond the scope of discovery previously authorized. The Court ordered Defendant to produce its claims file, thus, the file will contain all information on which Defendant relied for purposes of making its decision. There is a difference between the information which was available to Defendant and the information which was relied upon.
Accordingly, the Court sustains the objection to Request for Production No. 2.
In Request for Production No. 3, unlike the prior Request, Turner seeks to have Defendant produce the materials it consulted and relied upon at the time the case was denied. The Court does not require Defendant to produce information that was available, but upon which it did not rely.
However, Defendant is required to produce all of the information it considered in denying Turners claim.
Information which is to be produced pursuant to this order shall be produced within twenty days.