Depositions
(2) steps taken by the administrator to reduce the conflict; (3) the compensation for claims reviewers, and (4) any claims procedures or manuals. Te recent Mullins decision described above, also emphasized that discovery is allowed into “documentation of administrative processes designed only to check the accuracy of grants of claims (limited to claims guidelines actually consulted to adjudicate plaintiff ’s claim.”28
The Fourth Circuit Unfortunately, as of this time, there is little agreement as
what discovery is permissible in the Fourth Circuit. District court decisions have varied widely concerning what discovery is proper subsequent to Glenn. In 2010, the Western District of Virginia cited Glenn and concluded that discovery into the conflict of interest of a Plan Administrator is not “clearly erroneous and contrary to law.”29 Catledge v. Aetna Life Ins. Co.,30
via depositions of the key individuals involved in the Aetna’s decision making process.31
that there is a trend to allow discovery as set forth above to ensure that the Plan fulfilled its fiduciary duty to beneficiaries making claims for benefits.
Biography Elliott Andalman is partner at Andalman & Flynn in
Silver Spring, Maryland. He is a co-chair of the Disability Benefits Section of MAJ. His practice includes representation on disability benefits claims for federal, postal and state employees,
long term disability claims, including under
ERISA, and social security disability claims. Richard P. Neuworth (Lebau & Neuworth, LLC)
Similarly, the Court, in allowed limited discovery
However, the district court in
Roberts v. American Elec. Power Long Term Disability Plan, took the opposite track and sought to narrow the scope of discovery where the existence of a conflict of interest is readily ascertainable. In Roberts, the Court denied a party’s motion to expand discovery into the conflict of interest issue, stating “Because the standard of review is consistent whether or not a conflict of interest exists, there… is no longer a need to conduct discovery in order to provide evidence on the appropriate standard. In addition, any conflict of interest that does exist should be apparent from the dual role of the administrator and readily ascertainable from the administrative record. For these reasons, the Court sees no reason to grant extra-record discovery.”32
Conclusion As set forth above, since Glenn, plaintiff ’s counsel should
pursue discovery in ERISA appeals, including depositions, concerning all of the above issues – the fairness of the claims process, medical reviewers and claim reviewers - arguably involving conflict of interest. Discovery issues should be raised as early as possible and counsel must be prepared to fight over the right to do discovery and brief each issue on which you seek discovery. Just as in any other case, document requests and interrogatories should be filed prior to depositions to obtain the necessary foundation to take depositions. Te law is rapidly developing in this area and counsel must thoroughly research the existing case law to determine if their discovery requests are likely to be granted. What is clear at this time is
28 Mullins, 2010 U.S.Dist.LEXIS 52468 *22 (
W.D.Ky. 2010). 29 McDonough v. Aetna Life Ins. Co., 2010 WL 1418878 (
W.D.Va. Apr. 8, 2010). 30 Catledge v. Aetna Life Ins. Co., 594
F.Supp.2d 610 (2009). 31 Catledge v. Aetna Life Ins. Co., 594
F.Supp.2d 610 (2009). 32 Roberts v. American Elec. Power Long Term Disability Plan, Slip Copy, 2009 WL 2421587 (
S.D.W.Va., Aug. 6, 2009).
received his JD from the University of Baltimore Law School. He is a dedicated employment and employee benefit lawyer who has been practicing in the employment field for more than 20 years on behalf of individuals. He has extensive experience in employment benefits, discrimination, harassment, workers' compensation and social security disability cases. Michelle Amick is a third year law student at the
University of Baltimore in Baltimore, Maryland. She graduated as a member of Phi Beta Kappa from the Catholic University of America in 2008. She has clerked for Andalman and Flynn for 1 year, primarily assisting in the disability, employment, and personal injury sectors.
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www.disabilitybenefitslawfirm.com Trial Reporter / Winter 2011 53 FOR DENIAL?
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