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Depositions


employees who review disability claims, the Court in Mullins v. Prudential Life. Ins. Co. of America,18


entitled to know what training claims reviewers/professionals have that is relevant to the subject matter of the discovery request.19


On the opposite end of the discovery spectrum concerning claims reviewers, the Court in Bird v. GTX, Inc.,20


forbade


discovery of: (1) personnel files of administrator’s employees; (2) performance reviews of administrator’s employees; (3) pay records of administrator’s employees; and (4) training and qualifications of reviewers, reasoning that Glenn allows only limited, not extensive or burdensome, discovery into the conflict of interest issue.21


In Tornton v. Pfizer, Inc.,22 the


Court determined that areas outside of the scope of Glenn include the professional backgrounds of reviewers, including (1) the reviewer’s failure to become board certified; (2) a history of patient treatment by medical reviewers; and (3) whether reviewers faced legal charges or disciplinary actions.23


The Medical Reviewer Many disability practitioners fear that the claim’s medical


reviewer is biased in favor of the insurance company that is paying them, and that their review will be dictated by this arrangement. Tis legitimate concern has been recognized by some Courts and incorporated into their discovery analyses. In Carberry v. Metropolitan Life Ins. Co.,24


the Court allowed Santos v. Quebecor World Long Term Disability Plan,11 of allowed


discovery via deposition into “steps taken to reduce potential bias


claims personnel, promote accuracy, walling off


claims administrators from those interested in firm finances, management checks that penalized inaccurate decisions, level of experience of claims personnel, standards for claim staff accountability and whether there were separate compliance/ accountability functions.”12


permitted in Hays v. Provident Life and Acc. Ins. Co.,13


Similarly, discovery was also into the


history of the claims administration, steps taken by the Plan Administrator to reduce bias, and discovery into the financial incentives, bonus or award systems of those employees who were involved in a meaningful fashion in determining the outcome of the plaintiff ’s claim.14 Standard Life Ins. Co.,15


In Pemberton v. Reliance discovery was permitted to include


“statistical information about the outcome of claims submitted to reviewers,”16


contractual connections between


the Plan Administrator and claim reviewer, and statistical data about the number of times the reviewers found claimants able to work in at least a sedentary occupation or find that the claimants were not disabled.17


In regards to the training of


11 254 F.R.D. 643 (E.D.Cal. 2009) 12 Id. at 649. 13 623 F.Supp.2d 840 (E.D.Ky. 2008) 14 Id. 15 2009 WL 89696 (E.D.Ky. 2009). 16 Pemberton v. Reliance Standard Life Ins. Co., 2009 WL 89696, *3 (E.D.Ky. 2009). 17 Id. at 3. See also Myers v. Prudential Ins. Co. of America, 581 F.Supp.2d 904, 914 (E.D.Tenn. 2008)


52 Trial Reporter / Winter 2011


written discovery into the annual compensation received by the medical reviewer from the Plan Administrator, as well as the number of cases referred to the medical reviewer, reasoning that this discovery was relevant to the conflict of interest issue. Correspondingly, in Knopp v. Life Ins. Co. of North America,25


the court expressed that “Tis discovery


request asks for performance evaluations for the medical consultants or companies. Tis information is closely related to the issue of conflict of interest. For instance, if the medical consultants or companies were rewarded by Defendants for providing opinions adverse to a claimant, that would significantly affect the credibility of their evaluations.”26


The Claims Process Another subject area in which discovery has been


successfully sought is the fairness of the claims process itself. In Copus v. Life Ins. Co. of N. America,27


reasoned that existing fifth circuit precedent allows discovery


into topics including: (1) the selection of the claims reviewers; (discovery permitted into “incentive bonus, or reward programs or systems, formal or informal, for any employee involved in any meaningful way in reviewing disability claims).


18 2010 U.S.Dist.LEXIS 52468 (W.D.Ky. 2010) 19 Id. 20 2009 WL 3839478 (W.D.Tenn. 2009) 21 Id. 22 2010 WL 748219 (W.D.Mich. 2010) 23 Id. 24 2010 WL 1687949 (D.Colo. 2010). 25 2009 WL 5215395 (N.D.Cal. 2009). 26 Knopp v. Life Ins. Co. of North America, 2009 WL 5215395 *4 (N.D.Cal. 2009). 27 2008 WL 2794807 (N.D.Tex. 2008)


a Texas Court held that claimants are


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