Braun v. UNUM Life Insurance Company of America

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TAMMY BRAUN, )

) No. 22 CV 1223

Plaintiff, )

)

v. ) Magistrate Judge Young B. Kim

)

UNUM LIFE INSURANCE COMPANY )

OF AMERICA, )

) December 16, 2022

Defendants. )

MEMORANDUM OPINION and ORDER

Before the court is Plaintiff Tammy Braun’s motion for leave to take limited

discovery in this action to recover long-term disability (“LTD”) benefits under the

Employee Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001. Defendant

Unum Life Insurance Company of America (“Unum”) opposes the motion. For the

following reasons, Plaintiff’s motion is granted:

Background

Plaintiff worked as a legal administrative assistant at a law firm until

January 2021 when she stopped working because she suffers from

hypophosphatemia, osteoarthritis, and bilateral carpal tunnel syndrome. (R. 1,

Compl. ¶¶ 13-15.) Plaintiff filed a claim with Unum for LTD benefits under her

employee welfare benefit plan (“Plan”). (Id. ¶ 16.) Unum denied the claim, and

Plaintiff appealed the decision. (Id. ¶¶ 16-17.) On appeal Unum assigned one of its

employees, Dr. Scott Norris, to review Plaintiff’s claim. (Id. ¶ 18.) Dr. Norris

concluded that Plaintiff’s impairments did not preclude her from performing her

sedentary job as a legal administrative assistant, and so Unum again denied

Plaintiff’s claim on appeal. (Id.) Plaintiff disagrees with Dr. Norris’s findings and

claims they were “the product of biased claims handling” stemming from Unum’s

position as both the Plan’s insurer and its claims administrator. (R. 1, Pl.’s Compl.

¶ 23.) Plaintiff now seeks to depose Dr. Norris regarding his alleged conflict of

interest and bias in reviewing her claim.

Analysis

The parties agree that the Plan affords Unum discretion in reaching its

judgment on Plaintiff’s claim for LTD benefits. (R. 24, Pl.’s Mem. at 2; R. 28, Def.’s

Resp. at 7.) As a result, Unum’s denial of Plaintiff’s claim for ERISA benefits is

subject to the arbitrary and capricious standard of review, and will be affirmed so

long as:

(1) it is possible to offer a reasoned explanation, based on the evidence,

for [the] outcome, (2) the decision is based on a reasonable explanation

of relevant plan documents, or (3) the administrator has based its

decision on a consideration of the relevant factors that encompass the

important aspects of the problem.

Tompkins v. Cent. Laborers’ Pension Fund, 712 F.3d 995, 999-1000 (7th Cir. 2013).

In such a case, the court “generally do[es] not look to any evidence beyond what the

administrator considered.” Dorris v. Unum Life Ins. Co., 949 F.3d 297, 304 (7th Cir.

2020). That said, in Semien v. Life Insurance Company of North America, 436 F.3d

805, 815 (7th Cir. 2006), the Seventh Circuit held that limited discovery is

appropriate in certain “exceptional cases” where an ERISA claimant “makes specific

factual allegations of misconduct or bias in a plan administrator’s review

procedures.” To seek such limited discovery, a claimant must: (1) identify “a specific

conflict of interest or instance of misconduct”; and (2) show “good cause to believe

limited discovery will reveal a procedural defect in the plan administrator’s

determination.” Id.

After the Seventh Circuit announced the Semien standard, the Supreme

Court in Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105, 108 (2008),

held that a plan administrator’s “dual role” of determining eligibility for benefits

and paying benefits “creates a conflict of interest” that should be considered in

determining whether the plan administrator abused its discretion in denying

benefits. In light of Glenn, the Seventh Circuit “soften[ed]” the Semien standard,

such that district courts “retain broad discretion to limit and manage discovery”

where “the likelihood and gravity of a conflict of interest might require discovery to

‘identify a specific conflict of interest or instance of misconduct.’” Dennison v.

MONY Life Ret. Income Sec. Plan for Emps., 710 F.3d 741, 747 (7th Cir. 2013)

(finding that Glenn “implies a role for discovery in judicial review of benefits

determinations when a conflict of interest is alleged”). Thus, rather than requiring

identification of a specific conflict of interest as “a prerequisite to discovery,”

discovery may be permitted “to explore a conflict.” Id. However, the claimant must

still show more than a “thinly based suspicion” to justify such discovery. Id. at 746.

Here, Plaintiff seeks to depose Dr. Norris so that she may discover

information relating to his alleged conflict of interest and bias in handling her

claim. (R. 24, Pl.’s Mem.) Plaintiff argues that a structural conflict exists because

Unum decides eligibility and pays disability benefits. (Id. at 6-7); see also Glenn,

554 U.S. at 108. Under this structure, medical professionals such as Dr. Norris

receive fees from an insurer such as Unum that has “an interest in receiving a

report that minimizes, or discounts, a disability claim.” Jenkins v. Price Waterhouse

LTD Plan, 564 F.3d 856, 859 n.5 (7th Cir. 2009); see also Demer v. IBM Corp. LTD

Plan, 835 F.3d 893, 904 (9th Cir. 2016) (“[I]t is not hard to imagine an . . . examiner

who does not engage in a neutral, independent review, such as where the examiner

receives hundreds of thousands of dollars from a single [insurer] and performs

hundreds of reviews for that source every year.”). Unum responds that “[s]tructural

conflicts are ubiquitous,” and simply pointing to one is not enough to establish an

“exceptional circumstance” warranting limited discovery. (R. 28, Def.’s Resp. at 7.)

Unum also points out that Plaintiff must still satisfy the Semien standard and

argues that Plaintiff has failed to do so here. (Id. at 8-11.)

Under Semien Plaintiff must first identify a specific conflict of interest or

instance of misconduct by Unum. Plaintiff says she satisfies this requirement

because Unum engaged in “a documented ‘history of biased claims administration’”

involving Dr. Norris. (R. 24, Pl.’s Mem. at 5 (quoting Glenn, 554 U.S. at 117).) To

demonstrate Dr. Norris’s alleged bias, Plaintiff points to a string of cases revealing

what she describes as Dr. Norris’s “flawed pattern of assessment,” including lack of

expertise, mischaracterization of evidence, and refusal to consider contradictory

evidence. (Id. at 7-10.)

For starters, Plaintiff cites a handful of cases from this year finding

Dr. Norris’s conclusions inconsistent with the objective evidence. (Id. at 7-8.) In

Carney v. Unum Life Insurance Company, ___ F. Supp. 3d ___, 2022 WL 988360, at

*8, *10-11 (E.D. Mich. March 31, 2022), the court deemed “unpersuasive”

Dr. Norris’s findings, which were based solely on “file reviews” and not “wholly

supported by the record.” Similarly, in Chicco v. First Unum Life Insurance

Company, No. 20 CV 10593, 2022 WL 621985, at *4 (S.D.N.Y. March 3, 2022), the

court rejected Dr. Norris’s conclusions, reasoning that he erroneously discounted

relevant evidence as irrelevant and ignored evidence that contradicted his findings.

Plaintiff also cites cases raising suspicions of bias and/or cursory review by

Dr. Norris in the claims administration process, many of which also question his

qualifications. For example, in Dwyer v. Unum Life Insurance Co., 548 F. Supp. 3d

468, 498 (E.D. Pa. 2021), Dr. Norris reviewed the file of a claimant who is a double

amputee and denied the claim. In reversing the denial of benefits in that case, the

court noted that Dr. Norris had been working for Unum since 2010 and had not

treated patients since his hire. Id. at 483; see also Boykin v. Unum Life Ins. Co., No.

19 CV 137, 2022 WL 458213, at *15-16 (E.D. Cal. Feb. 15, 2022) (granting “little

weight” to Dr. Norris’s evaluation because he did not examine claimant and neither

party explained how long he had been reviewing claims or practicing medicine).

Similarly, in Boersma v. Unum Life Insurance Company, 546 F. Supp. 3d 703, 713

(M.D. Tenn. 2021), the court disagreed with Dr. Norris’s conclusion that the

claimant did not suffer a disabling condition, noting that Dr. Norris “seems to have

simply assumed that fibromyalgia can never be disabling for the purposes of a

sedentary job.” The court in that case found “particularly striking” Dr. Norris’s

“conclusory rejection of the possibility that fibromyalgia might be disabling . . .

given that he is not a rheumatologist and does not have meaningful expertise in the

condition.” Id.

Likewise, in Tam v. First Unum Life Insurance Company., 491 F. Supp. 3d

698, 709 (C.D. Cal. 2020), the court rejected the “paper-reviews” Dr. Norris and his

colleagues performed—none of whom had “experience or specialization” in treating

her impairments—because they “mischaracterized and/or ignored evidence in the

record.” And in Dewsnup v. Unum Life Insurance Company, No. 17 CV 126, 2018

WL 6478886, at *10 n.3 (D. Utah Dec. 10, 2018), the court described the reviewing

physicians’—including Dr. Norris’s—evaluations as “troubling” and admonished

Unum not to allow its reviewers to “cherry-pick[] the information helpful to its

decision to deny [a] claim and disregard[] the contrary opinions of the medical

professionals who examined, treated, and interviewed” the claimant.

See also Mistick v. Unum Grp. Corp., No. 19 CV 190, 2020 WL 13442144, at *6 (E.D.

Tenn. March 30, 2020) (finding that Dr. Norris’s report lacked support of objective

evidence and “fail[ed] to explain why the medical records . . . reviewed demonstrate

that [claimant was] capable of sedentary work”); Rikimaru v. Unum Life Ins. Co.,

No. 19 CV 186, 2020 WL 13505360, at *6-9 (D. Colo. March 27, 2020) (deciding that

claimant was entitled to benefits and rejecting Dr. Norris’s opinion to the contrary,

which claimant alleged relied on cherry-picked evidence); Brown v. Unum Life Ins.

Co., 356 F. Supp. 3d 949, 968 (C.D. Cal. 2019) (finding Dr. Norris “placed far too

much emphasis” on non-dispositive evidence); Fleming v. Unum Life Ins. Co., No. 17

CV 1576, 2018 WL 6133859, at *10 (C.D. Cal. Nov. 20, 2018) (finding

“unpersuasive” Dr. Norris’s “paper-only review” because defendant failed to show

how Dr. Norris’s board certification in family, occupational, and aerospace medicine

made him qualified to render the judgment he did); Clark v. Unum Life Ins. Co., No.

17 CV 1119, 2018 WL 4931935, at *15-16 (M.D. Tenn. Oct. 10, 2018) (finding that

Dr. Norris “merely restat[ed] unfavorable evidence” rather than “reconcil[ing]

discrepancies”).

Unum responds that Plaintiff “simply disparages Dr. Norris, professes that

he is wrong on the medical merits, and demands a deposition.” (R. 28, Def.’s Resp.

at 2.) While the court issues no findings of fact on whether Dr. Norris has engaged

in any misconduct or shown any bias in this or other actions, the court disagrees

with Unum’s characterization of this case as a “run-of-the-mill” ERISA case in

which the parties simply disagree on the “medical merits.” (R. 28, Def.’s Resp. at 8

(quoting Midthun-Hensen v. Grp. Health Coop., No. 21 CV 608, 2022 WL 1442842,

at *6 (W.D. Wis. May 6, 2022)).) Taken together, the cases Plaintiff discusses

“raise[] the possibility that [Unum’s] decision[-]making process . . . was structurally

tainted in a material way.” Mohammed v. Prudential Ins. Co., No. 19 CV 3258,

2020 WL 4569696, at *7 (N.D. Ill. Aug. 7, 2020). Plaintiff thus meets the first step

of the Semien standard.

Next, Plaintiff contends that she satisfies the second prong of the Semien

standard because she has shown good cause to believe a deposition of Dr. Norris will

reveal a procedural defect in Unum’s handling of claims. (R. 24, Pl.’s Mem. at 10-

15.) Plaintiff alleges here that Dr. Norris: (1) based his opinion solely on file review;

(2) cherry-picked evidence; and (3) is not qualified to render medical judgment

regarding her impairments. (R. 1, Compl. ¶¶ 13-15, 18; R. 24, Pl.’s Mem. at 10-11.)

Plaintiff also contends that Dr. Norris “mistook” her “inability to work as a simple

matter of choice.” (R. 24, Pl.’s Mem. at 11.) She argues that these errors in the

claims administration process, combined with Unum’s history of “biased practices,”

amounts to “good cause to assume that the deposition of Dr. Norris will likely reveal

a procedural defect” in its process. (Id. at 14.)

Unum responds that because it has offered to arrange for an independent

medical examination (“IME”) of Plaintiff, “the impact of any perceived conflict or

bias” would be minimized and, as such, discovery is not warranted. (R. 28, Def.’s

Resp. at 9.) But Unum cites no authority precluding limited discovery where a plan

administrator has offered an IME to a claimant who satisfies the Semien standard.

Unum further argues that Plaintiff “fails to articulate any specific evidence to be

obtained from a deposition of Dr. Norris or how she contends the proposed

testimony would illuminate [Unum’s] alleged ‘dual role’ conflict or show any

procedural conflict.” (Id.) Unum’s argument is unavailing as Plaintiff has made the

necessary showing under Semien as softened by Dennison, making clear that she

seeks testimony from Dr. Norris regarding his alleged conflict of interest, bias, lack

of expertise, and claims administration work for Unum. (R. 24, Pl.’s Mem. at 12-

15.) Accordingly, because Plaintiff has shown more than a “thinly based suspicion”

justifying limited discovery, this court exercises its “broad discretion” to permit

Plaintiff to depose Dr. Norris. Dennison, 710 F.3d at 747.

At Dr. Norris’s deposition, Plaintiff may discover information “comparable to

conventional approaches to discrediting the testimony of retained experts whose

objectivity may be challenged based on, e.g., the number of times he or she has

served as an expert in support of a party and the amount of compensation received.”

Demer, 835 F.3d at 901. In particular, Plaintiff may question Dr. Norris regarding:

(1) his training and expertise and whether they are considered when Unum assigns

him to claims for review; (2) his experience reviewing and/or evaluating ERISA

benefits claims; (3) his employment with Unum and compensation he has received,

including whether he has any “financial incentive to deny” claims; (4) his knowledge

of Unum’s “general approval and termination rates” for LTD claims and,

“separately, for [LTD] claims involving [Plaintiff’s impairments]”; (5) his knowledge

of the “steps [Unum] has taken to reduce bias and promote accuracy, such as

walling off claims administrators from those interested in firm finances”; and (6)

“any factors or evidence considered by [him] in denying Plaintiff’s claim that are not

contained in the administrative record.” Klein v. Northwestern Mut. Life Ins. Co.,

806 F. Supp. 2d 1120, 1127 (S.D. Cal. 2011). These are the subject matters Plaintiff

is permitted to explore during Dr. Norris’s deposition.

Conclusion

For the foregoing reasons, Plaintiff's motion for limited discovery to depose

Dr. Norris is granted.

ENTER:

foy ng B. k) m

ited States Magistrate Judge

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