Weissman v. UnitedHealthcare Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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KATE WEISSMAN, *

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Plaintiff, *

*

v. *

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UNITEDHEALTHCARE INSURANCE *

COMPANY, UNITEDHEALTHCARE *

SERVICES, LLC, and INTERPUBLIC *

GROUP OF COMPANIES, INC. CHOICE *

PLUS PLAN, *

Defendants. *

_____________________________________ *

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RICHARD COLE, *

*

Plaintiff, *

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Civil Action Nos. 19-cv-10580-ADB

v. *

19-cv-12224-ADB

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19-cv-12239-ADB

UNITEDHEALTHCARE INSURANCE *

COMPANY, *

Defendant. *

_____________________________________ *

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ZACHARY RIZZUTO, *

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Plaintiff, *

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v. *

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UNITEDHEALTHCARE INSURANCE *

COMPANY, UNITEDHEALTHCARE *

SERVICES, INC., and THE HERTZ *

CUSTOM BENEFIT PROGRAM, *

*

Defendants. *

*

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MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

BURROUGHS, D.J.

Plaintiffs Kate Weissman, Richard Cole, and Zachary Rizzuto (together, “Plaintiffs”)

bring this putative class action suit, alleging that Defendants UnitedHealthcare Insurance

Company (“UnitedHealthcare Insurance”), UnitedHealthcare Services, LLC (“UnitedHealthcare

Services,” and, with UnitedHealthcare Insurance, “UnitedHealthcare”), Interpublic Group of

Companies, Inc. Choice Plus Plan (the “Interpublic Plan”), and The Hertz Custom Benefit

Program (the “Hertz Plan,” with the Interpublic Plan, the “Plans,” and with UnitedHealthcare

and the Interpublic Plan, “Defendants”) violated the Employee Retirement Income Security Act

of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). See [ECF No. 41 (“Am. Compl.”)]. More

specifically, Plaintiffs assert that UnitedHealthcare deceptively and unfairly administered their

ERISA plans by refusing to cover Proton Beam Radiation Therapy (“PBRT”), a form of

radiation used to destroy cancerous tumors, because it is more expensive than more traditional

cancer treatments such as Intensity Modulated Radiotherapy (“IMRT”). [Id. ¶¶ 1–3]. Currently

before the Court is Defendants’ motion to dismiss. [ECF No. 46]. For the reasons set forth

below, the motion is DENIED.

I. BACKGROUND

A. Factual Background

For purposes of the instant motion to dismiss, the Court, as it must, “accept[s] as true all

well-pleaded facts alleged in the complaint and draw[s] all reasonable inferences therefrom in

the pleader’s favor.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013).

1. The Parties

Ms. Weissman is a Massachusetts citizen who resides in Suffolk County. [Am. Compl.

¶ 4]. Mr. Cole is a Florida citizen who lives in Miami-Dade County. [Id. ¶ 5]. Mr. Rizzuto is a

Florida citizen who resides in Lee County. [Id. ¶ 6]. All three are participants in group health

plans governed by ERISA and administered by UnitedHealthcare. [Id. ¶¶ 4–6].

UnitedHealthcare is a healthcare plan provider and insurer that provides, administers, and insures

health plans. [Id. ¶¶ 7–8]. It acts as a fiduciary with respect to its administration of ERISA

plans, and, in so doing, interprets and applies ERISA plan terms, makes coverage and benefit

decisions in its sole discretion, and provides payment to plan participants and beneficiaries

and/or their providers. [Id. ¶ 20]. Regardless of whether a given health insurance plan is fully

insured (i.e., UnitedHealthcare pays the benefits out of its own assets) or self-funded (i.e., the

employer or plan sponsor is ultimately responsible for paying benefits), UnitedHealthcare

administers the plan and makes all benefits determinations. [Id. ¶ 21]. The Plans are self-funded

group health plans organized and regulated under ERISA. [Id. ¶¶ 9–10].

2. PBRT

PBRT is a medical procedure that uses protons to deliver a curative dose of radiation to a

cancerous tumor, while reducing radiation doses to healthy tissues and organs. [Am. Compl.

¶ 40]. It has fewer complications and side effects than IMRT because proton beams are so

targeted that patients can tolerate greater doses of radiotherapy than with the photon beams that

are used in IMRT. [Id.]. The beam used in PBRT can be adjusted to match the size and shape of

the cancerous tissue being targeted, which limits the degree to which healthy tissue is harmed.

[Id.]. PBRT, which was invented in 1946, has been used to treat cancer since the 1950s, was

approved as a cancer treatment by the Food and Drug Administration (“FDA”) in 1988, and,

today, is recognized by numerous medical organizations across the United States as a safe and

effective method for treating cancer. [Id. ¶ 41].

As set forth in its PBRT Medical Policy No. T0132 (the “PBRT Policy”),

UnitedHealthcare generally takes the position that PBRT is experimental or investigational, and

therefore not a covered treatment under most of the group health plans it administers. [Am.

Compl. ¶ 42]. According to Plaintiffs, the PBRT Policy ignores conclusions from the medical

community regarding the efficacy of PBRT and relies on outdated and unreliable scientific

studies. [Id. ¶ 44]. On January 1, 2019, UnitedHealthcare issued a revised policy (the “New

PBRT Policy”) to reflect the fact that it no longer considered PBRT to be experimental insofar as

it is used to treat prostate cancer. [Id. ¶ 45].

3. Ms. Weissman’s Allegations

Ms. Weissman is a beneficiary under the Interpublic Plan, which is administered by

UnitedHealthcare. [Am. Compl. ¶ 24]. The Interpublic Plan “pays Benefits for therapeutic

treatments . . ., including . . . intravenous chemotherapy or other intravenous infusion therapy

and radiation oncology.” [Id. ¶ 26]. That said, the Interpublic Plan limits coverage to healthcare

services that are “Medically Necessary,” defined as follows:

Medically Necessary - health care services provided for the purpose of preventing,

evaluating, diagnosing or treating a Sickness, Injury, Mental Illness,

substance-related and addictive disorders, condition, disease or its symptoms, that

are all of the following as determined by the Claims Administrator or its designee,

within the Claims Administrator’s sole discretion. The services must be:

• In accordance with Generally Accepted Standards of Medical Practice.

• Clinically appropriate, in terms of type, frequency, extent, site and

duration, and considered effective for your Sickness, Injury, Mental

Illness, substance-related and addictive disorders, disease or its

symptoms.

• Not mainly for your convenience or that of your doctor or other health

care provider.

• Not more costly than an alternative drug, service(s) or supply that is at

least as likely to produce equivalent therapeutic or diagnostic results as

to the diagnosis or treatment of your Sickness, Injury, disease or

symptoms.

[Id. ¶¶ 26–27]. Additionally, the Interpublic Plan contains a number of exclusions from

coverage, including an exclusion for experimental or investigational services (the “Experimental

Exclusion”), which are defined as follows:

Experimental or Investigational Services - medical, surgical, diagnostic,

psychiatric, mental health, substance-related and addictive disorders or other health

care services, technologies, supplies, treatments, procedures, drug therapies,

medications or devices that, at the time the Claims Administrator and the Plan

Administrator make a determination regarding coverage in a particular case, are

determined to be any of the following:

• Not approved by the U.S. Food and Drug Administration (FDA) to be

lawfully marketed for the proposed use and not identified in the

American Hospital Formulary Service or the United States

Pharmacopoeia Dispensing Information as appropriate for the

proposed use.

• Subject to review and approval by any institutional review board for

the proposed use. (Devices which are FDA approved under the

Humanitarian Use Device exemption are not considered to be

Experimental or Investigational.)

• The subject of an ongoing Clinical Trial that meets the definition of a

Phase I, II or III Clinical Trial set forth in the FDA regulations,

regardless of whether the trial is actually subject to FDA oversight.

[Id. ¶ 28].

In October 2015, Ms. Weissman was diagnosed with Stage IIB squamous cell carcinoma

of the cervix. [Am. Compl. ¶ 61]. She completed successful traditional treatments in December

2015. [Id.]. A few months later, however, a PET/CT scan revealed two small lymph nodes in

her para-aortic region, which were confirmed to be squamous cell carcinoma. [Id. ¶ 62]. She

underwent laparoscopic resection of the nodes in April 2016. [Id.]. Subsequently,

Ms. Weissman was referred to Dr. Andrea L. Russo, a professor at Harvard Medical School and

a member of Massachusetts General Hospital’s Department of Radiation Oncology, for

consideration of PBRT. [Id. ¶ 63]. Dr. Russo, along with other members of Ms. Weissman’s

care team, determined that PBRT was essential for multiple medical reasons. [Id.]. Pursuant to

the Interpublic Plan’s protocols, Ms. Weissman’s providers contacted UnitedHealthcare to seek

prior authorization for her treatment plan, which included PBRT. [Id. ¶ 64]. In an April 6, 2016

letter, UnitedHealthcare denied coverage based on the PBRT Policy and the Experimental

Exclusion. [Id. ¶¶ 64–65]. Ms. Weissman and Dr. Russo appealed the adverse decision, both

within UnitedHealthcare and with an external review organization, but were unsuccessful in

obtaining coverage for Ms. Weissman’s PBRT treatment. [Id. ¶¶ 66–76]. Despite the lack of

coverage, Ms. Weissman underwent successful PBRT treatment and is now cancer-free.

[Id.¶¶ 77–78]. Her treatment cost $95,000. [Id. ¶ 77].

4. Mr. Cole’s Allegations

Mr. Cole is covered by a health insurance plan issued on behalf of his employer, Cole,

Scott & Kissane, P.A. (the “CSK Plan”) and administered by UnitedHealthcare. [Am. Compl.

¶ 29]. Under the CSK Plan, Mr. Cole is covered for healthcare services that are “medically

necessary” (i.e., “health care services provided for the purpose of preventing, evaluating,

diagnosing or treating a Sickness, Injury, Mental Illness, substance-related and addictive

disorders, condition, disease or its symptoms”). [Id. ¶¶ 30–31]. The CSK Plan includes the

same Experimental Exclusion as Ms. Weissman’s plan. [Id. ¶ 32].

In April 2018, Mr. Cole was diagnosed with high-risk prostate cancer. [Am. Compl.

¶ 81]. In May 2018, his radiation oncologist, Dr. Marcio Fagundes of the Miami Cancer Institute

at Baptist Health South Florida, recommended that Mr. Cole undergo PBRT because, among

other reasons, it would have a higher likelihood of achieving a better outcome than IMRT. [Id.].

UnitedHealthcare denied Mr. Cole’s request for pre-authorization, citing the Experimental

Exclusion and the PBRT Policy. [Id. ¶ 82]. Mr. Cole and Dr. Fagundes appealed the coverage

denial, both within UnitedHealthcare’s internal appeal channels and externally, but were

unsuccessful in obtaining coverage for Mr. Cole’s PBRT treatment. [Id. ¶¶ 83–94].

Nonetheless, Mr. Cole underwent PBRT treatment, with positive results. [Id. ¶ 95]. His

out-of-pocket expenses were $85,000. [Id.].

5. Mr. Rizzuto’s Allegations

Mr. Rizzuto is a beneficiary under the Hertz Plan, which is administered by

UnitedHealthcare. [Am. Compl. ¶ 33]. The Hertz Plan provides coverage that is nearly identical

to the coverage provided under Ms. Weissman’s plan. Compare [id. ¶¶ 26–28], with [id.

¶¶ 34–36].

Mr. Rizzuto was diagnosed with brain cancer in August 2017. [Am. Compl. ¶ 98]. In

December 2017 and again in January 2018, Mr. Rizzuto underwent craniotomy procedures,

which led to adverse side effects including cognitive deficits, fatigue, and loss of peripheral

vision. [Id. ¶¶ 100–01]. Subsequently, Mr. Rizzuto’s radiation oncologist, Dr. Robert Lustig,

the Chief of Clinical Operations for Radiation Oncology and a professor of Clinical Radiation

Oncology at the University of Pennsylvania, recommended PBRT. [Id. ¶ 101]. Mr. Rizzuto’s

doctors believed that PBRT was safer than traditional radiation and would spare healthy brain

tissue. [Id. ¶ 102]. Accordingly, Mr. Rizzuto sought prior authorization from UnitedHealthcare

for his PBRT treatment. [Id.]. Shortly thereafter, UnitedHealthcare denied coverage based on

the PBRT Policy and the Experimental Exclusion. [Id. ¶ 104]. Mr. Rizzuto, his wife, and his

doctors appealed the decision, both internally and externally, but could not convince

UnitedHealthcare to change its position. [Id. ¶¶ 105–115]. Mr. and Mrs. Rizzuto raised the

$126,000 needed for Mr. Rizzuto’s PBRT treatment through a Go Fund Me page. [Id. ¶ 116].

Mr. Rizzuto’s tumor is now stable. [Id. ¶ 117].

B. Procedural Background

Ms. Weissman filed her original complaint in this action on March 26, 2019. [ECF No.

1]. On March 25, 2020, the Court granted Defendants’ motion to dismiss, but gave

Ms. Weissman leave to amend. [ECF No. 36]. On April 8, 2020, the Court consolidated

Ms. Weissman’s case with Mr. Cole’s, which was transferred to this district from the United

States District Court for the Southern District of Florida, [ECF No. 39], and on April 13, 2020,

the Court further consolidated the cases with Mr. Rizzuto’s, which was transferred to this district

from the United States District Court for the Middle District of Florida, [ECF No. 40].

On May 15, 2020, Plaintiffs filed their two-count consolidated, amended class-action

complaint. [Am. Compl.]. Their proposed class consists of:

All persons covered under ERISA-governed plans, administered or insured by

UnitedHealthcare, whose requests for PBRT were denied at any time within the

applicable statute of limitations, or whose requests for PBRT will be denied in the

future, based upon a determination by UnitedHealthcare that PBRT is not medically

necessary or is experimental, investigational or unproven.

[Id. ¶ 126].1 In Count I, asserted against UnitedHealthcare, they allege that UnitedHealthcare

breached its fiduciary duties “by adopting, implementing, and applying a policy to deny

coverage for PBRT based on the Experimental Exclusion under its Plans, when such a finding

was contrary to generally accepted practices and to the terms of the Plans.” [Id. ¶ 146]; see [id.

¶ 153]. Pursuant to 29 U.S.C. § 1132(a)(3), ERISA’s “catch-all” provision, they seek an

1 Excluded from the putative class are:

(a) Defendant, including any entity or division in which Defendant has a controlling

interest, as well as its agents, representatives, officers, directors, employees,

trustees, and other entities related to, or affiliated with Defendant, (b) Class

Counsel, and (c) the Judge to whom this case is assigned and any members of the

Judge’s staff or immediate family.

[Am. Compl. ¶ 127].

injunction requiring United Healthcare to: (1) “[r]etract its categorical denials of PBRT prior

authorization requests and/or claims”; (2) “[p]rovide notice to all PBRT Class Members who

have had prior authorization requests or claims for PBRT denied”; (3) “[r]e-evaluate all prior

authorization requests or claims for PBRT by Plaintiffs and the PBRT Class Members under an

ERISA-compliant procedure and, where warranted, reimburse Plaintiffs and the PBRT Class

Members for amounts incurred for PBRT as a result of coverage denials in violation of ERISA”;

and (4) “[a]ccount for and disgorge any profits UnitedHealthcare may have realized by virtue of

its improperly denied claims and violations of ERISA.” [Id. at 43].

In Count II, asserted against all defendants, Plaintiffs allege that UnitedHealthcare

improperly denied their benefits. [Am. Compl. ¶¶ 154–61]. Under 29 U.S.C. § 1132(a)(1)(B),

they seek: (1) an award of the amounts owed to them; or (2) the injunctive relief described

above. [Id. at 43–44].2

On June 29, 2020, Defendants moved to dismiss. [ECF No. 46]. Plaintiffs opposed on

August 10, 2020, [ECF No. 50], and Defendants replied on September 2, 2020, [ECF No. 54].

II. LEGAL STANDARD

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all

well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all

reasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d

74, 76, 80 (1st Cir. 2019). “[D]etailed factual allegations” are not required, but the complaint

must set forth “more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

2 In connection with both counts, Plaintiffs seek pre- and post-judgment interest as well as

attorneys’ fees. [Am. Compl. at 44].

555 (2007). The alleged facts must be sufficient to “state a claim to relief that is plausible on its

face.” Id. at 570.

“To cross the plausibility threshold a claim does not need to be probable, but it must give

rise to more than a mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40,

44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of

plausibility is ‘a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint

should be read as a whole, not parsed piece by piece to determine whether each allegation, in

isolation, is plausible.” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). “The plausibility standard

invites a two-step pavane.” Elsevier, 732 F.3d at 80 (citing Grajales, 682 F.3d at 45). First, the

Court “must separate the complaint’s factual allegations (which must be accepted as true) from

its conclusory legal allegations (which need not be credited).” Id. (quoting Morales-Cruz v.

Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court “must determine whether

the remaining factual content allows a ‘reasonable inference that the defendant is liable for the

misconduct alleged.’” Id. (quoting Morales-Cruz, 676 F.3d at 224).

III. DISCUSSION

A. Breach of Fiduciary Duty

As noted above, Plaintiffs allege that UnitedHealthcare breached its fiduciary duties by

“adopting, implementing, and applying a policy to deny coverage for PBRT based on the

Experimental Exclusion under its Plans, when such a finding was contrary to generally accepted

practices and to the terms of the Plans” and seek relief under 29 U.S.C. § 1132(a)(3). [Am.

Compl. ¶ 146]. Defendants make two arguments as to why Plaintiffs’ breach of fiduciary duty

claim should be dismissed. For the reasons discussed below, the Court finds each unconvincing,

and Defendants’ motion to dismiss Plaintiffs’ breach of fiduciary duty claim, [ECF No. 46], is

therefore DENIED.

1. The Court’s Prior Ruling Does Not Bar Plaintiffs’ Claim

Defendants argue that the Court already determined, in its March 25, 2020 Memorandum

and Order granting Defendants’ motion to dismiss Ms. Weissman’s complaint (the “March 2020

Order”), [ECF No. 36], that Plaintiffs’ breach of fiduciary duty claim fails as a matter of law, and

that the claim should therefore be dismissed, [ECF No. 47 at 10–12]. Plaintiffs respond that

Defendants misread the March 2020 Order and that even if their denial of benefits and breach of

fiduciary duty claims are ultimately found to be duplicative, the Court should not dismiss either

at the motion to dismiss stage. [ECF No. 50 at 9–11]. In the March 2020 Order, the Court found

the following:

ERISA provides various civil enforcement mechanisms in 29 U.S.C. § 1132(a).

Each subsection provides a separate cause of action, requiring different elements

and providing different relief. Section 1132(a)(1)(B) allows a participant in an

ERISA-governed plan to bring a civil action to recover benefits due to him under

the terms of his plan, to enforce his rights under the terms of the plan, or to clarify

his rights to future benefits under the terms of the plan. Section 1132(a)(3),

meanwhile, provides that a participant may bring a civil action (A) to enjoin any

act or practice which violates any provision of this subchapter or the terms of the

plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations

or (ii) to enforce any provisions of this subchapter or the terms of the plan.

The Supreme Court has explained that § 1132(a)(1)(B) allows a plaintiff to recover

benefits due under the plan, to enforce rights under the terms of the plan, and to

obtain a declaratory judgment of future entitlement to benefits under the provisions

of the plan contract. The Supreme Court has also said that § 1132(a)(3) is a

catch-all provision that act[s] as a safety net, offering appropriate equitable relief

for injuries . . . not elsewhere adequately remed[ied] under § 1132(a). [F]ederal

courts have uniformly concluded that, if a plaintiff can pursue benefits under the

plan pursuant to Section [(a)](1), there is an adequate remedy under the plan which

bars a further remedy under Section [(a)](3).

In response, Weissman argues that it is premature to determine whether she can

bring claims under both § 1132(a)(1)(B) and § 1132(a)(3). Other circuits that have

considered the issue have found that a plaintiff may plead claims under both

§ 1132(a)(1)(B) and § 1132(a)(3) at the motion to dismiss stage, so long as the

plaintiff does not actually recover under both theories. This Court recently found

that it is inappropriate to dismiss a complaint that brings claims under both

§ 1132(a)(1)(B) and § 1132(a)(3) as duplicative because plaintiffs can bring claims

under both sections even though plaintiffs cannot recover under both provisions.

In this case, however, where the complaint only seeks relief under § 1132(a)(3) and

makes no mention of § 1132(a)(1)(B), Weissman’s argument that she may seek

relief under both statutes is inapposite.

Here, Weissman seeks a disgorgement of any profits that the Defendants made by

wrongfully denying coverage, and she also seeks an injunction compelling

UnitedHealthcare to (1) provide coverage for proton beam therapy, (2) provide

notice to plan members of that coverage, and (3) re-evaluate all prior authorization

requests for coverage for proton beam therapy. Because the complaint seeks relief

that is generally available under § 1132(a)(1)(B), it must be dismissed because it

has inappropriately repackaged a request for relief under § 1132(a)(1)(B) as an

action under § 1132(a)(3).

[ECF No. 36 at 11–13 (alterations in original) (citations and internal quotation marks omitted)].

Additionally, the Court noted that Ms. Weissman’s “complaint inappropriately seeks only relief

under 29 U.S.C. § 1132(a)(3).” [Id. at 16 (emphasis added)].

Contrary to Defendants’ assertion, the problem with Ms. Weissman’s initial complaint

was not that her § 1132(a)(3) claim was deficient as a matter of law but rather that bringing a

standalone § 1132(a)(3) claim, where § 1132(a)(1)(B) might provide an adequate remedy, is

inappropriate. In other words, an ERISA plaintiff cannot eschew the statute’s preferred

enforcement mechanism, § 1132(a)(1)(B), for its catch-all provision, § 1132(a)(3), by electing to

forgo a § 1132(a)(1)(B) claim. The amended complaint remedies that problem by asserting

claims under both § 1132(a)(3) and § 1132(a)(1)(B). Although Defendants are correct that

Plaintiffs will not be permitted to ultimately recover under § 1132(a)(3) if § 1132(a)(1)(B)

provides an adequate remedy, for the reasons noted in the March 2020 Order, the Court need not

dismiss the § 1132(a)(3) claim at this stage merely because it may turn out to be duplicative.

Accordingly, the March 2020 Order does not foreclose Plaintiffs’ breach of fiduciary duty

claim.3

2. Plaintiffs Have Not Alleged a Breach of Fiduciary Duty Based Solely on

the Adoption of the PBRT Policy

Defendants next argue that Plaintiffs cannot challenge UnitedHealthcare’s PBRT Policy

because the establishment of a clinical coverage policy used for interpreting plan terms is not a

fiduciary act under ERISA. [ECF No. 47 at 13–14; ECF No. 54 at 10–11]. Plaintiffs maintain

that they are not challenging UnitedHealthcare’s mere establishment of the PBRT Policy but

rather its application of the policy to their claims. [ECF No. 50 at 11–14].

As the Court noted in the March 2020 Order, Defendants are correct that Plaintiffs cannot

assert that UnitedHealthcare’s establishment of the PBRT Policy is, itself, a breach of fiduciary

duty under ERISA. See [ECF No. 36 at 9–11]. The Court, however, does not understand the

amended complaint to be advancing a theory based only on the creation of the PBRT Policy.

Plaintiffs allege that UnitedHealthcare breached its fiduciary duties by denying their requests for

pre-authorization for PBRT treatment based on the PBRT Policy and the Experimental

Exclusion. [Am. Compl. ¶ 146 (“UnitedHealthcare violated these duties by adopting,

implementing, and applying a policy to deny coverage for PBRT based on the Experimental

Exclusion under its Plans . . .” (emphasis added)); id. ¶ 124 (“By drafting, implementing, and

applying its PBRT Policy, UnitedHealthcare sacrificed the interests of insureds like Plaintiffs

3 The parties dispute the applicability of the law-of-the-case doctrine as to the March 2020 Order,

noting, among other things, that Messrs. Cole and Rizzuto were not parties to the litigation when

the Court made its ruling. See [ECF No. 47 at 11–12; ECF No. 50 at 9, 9 n.1; ECF No. 54 at 8, 8

n.1]. The Court need not decide whether any exceptions apply or whether the law-of-the-case

doctrine binds non-parties whose claims have since been consolidated because the Court did not,

in fact, find that Plaintiffs’ § 1132(a)(3) claim was legally deficient.

. . .” (emphasis added))]. Plaintiffs do not object to the PBRT Policy’s mere existence but rather

to UnitedHealthcare’s reliance on it in denying coverage for PBRT treatment.

B. Denial of Benefits

As noted above, Plaintiffs allege that UnitedHealthcare improperly denied them benefits

to which they were entitled and seek an award reimbursing them for the cost of their PBRT

treatment under § 1132(a)(1)(B). [Am. Compl. ¶¶ 154–61; id. at 43–44]. Defendants make two

arguments as to why Plaintiffs’ denial of benefits claim should be dismissed. For the reasons

discussed below, each is unpersuasive, and Defendants’ motion to dismiss Plaintiffs’ denial of

benefits claim, [ECF No. 46], is therefore DENIED.

1. Plaintiffs Have Adequately Alleged that the Exclusions Do Not Apply

Defendants argue that Plaintiffs have failed to plausibly allege that both potentially

applicable coverage exclusions are inapplicable. [ECF No. 47 at 14–19; ECF No. 54 at 12–16].

Plaintiffs maintain that their allegations on this issue are sufficient to withstand a motion to

dismiss. [ECF No. 50 at 14–18].

As an initial matter, by focusing on exclusions, Defendants seem to concede that PBRT

was “medically necessary” for each plaintiff. See [ECF No. 47 at 14–19 (focusing exclusively

on exclusions); ECF No. 54 at 12–16]. Additionally, Plaintiffs appear to accept that it is their

burden to plead facts suggesting that the exclusions are inapplicable. See [ECF No. 50 at 14–18

(focusing on sufficiency of allegations and not challenging Defendants’ statement concerning

burden)]. Accordingly, the question before the Court is whether Plaintiffs’ denial of benefits

claim is viable in light of the potentially applicable exclusions and Plaintiffs’ factual allegations

regarding those exclusions.

The first potentially applicable exclusion is the Experimental Exclusion, which excludes

coverage if the healthcare service in question is determined to be: (1) not approved by the FDA;

(2) subject to review and approval by any institutional review board; or (3) the subject of an

ongoing clinical trial. [Am. Compl. ¶¶ 28, 32, 36]. Defendants admit that Plaintiffs have

adequately alleged that the FDA approved PBRT in 1988, [ECF No. 47 at 16], but argue that

Plaintiffs have failed to plead facts suggesting that PBRT does not fall into the exclusion’s other

two categories, [id. at 16–19].

The second potentially applicable exclusion is the unproven services exclusion, which

exempts from coverage “services . . . that are determined not to be effective for treatment of the

medical condition and/or not to have a beneficial effect on health outcomes due to insufficient

and inadequate clinical evidence from well-conducted randomized controlled trials or cohort

studies in the prevailing published peer-reviewed medical literature.” [Am. Compl. ¶ 53].

Defendants assert that Plaintiffs have pointed to no specific clinical evidence from controlled

trials or cohort studies in peer-reviewed medical literature evidencing that PBRT is medically

effective. [ECF No. 47 at 17–18].

Given Plaintiffs’ burden at the motion to dismiss stage, see supra, Section II, their

allegations are sufficient to survive a motion to dismiss. Specifically, Plaintiffs allege that,

among other things:

• Medicare and Medicaid cover PBRT, [Am. Compl. ¶ 39];

• PBRT has been used to treat cancer since the 1950s, [id. ¶ 41];

• The National Association for Proton Therapy, the Alliance for Proton Therapy

Access, and other medical organizations and studies have validated the safety

and effectiveness of PBRT, [id.];

• Multiple cancer facilities and providers, including Baptist Hospital’s Miami

Cancer Institute, the MD Anderson Cancer Center, Loma Linda University, the

University of Florida, the University of Maryland, Northwestern University, the

Mayo Clinic, Emory University, Case Western Reserve University,

Washington University in St. Louis, the University of Washington, the New

York Proton Center, and the Texas Center for Proton Therapy regularly

recommend and use PBRT, [id.];

• UnitedHealthcare covers PBRT for individuals younger than nineteen, [id.

¶ 43];

• One of UnitedHealthcare’s affiliates recently pledged over $15 million to

construct and operate a proton center in New York City, [id. ¶ 57];

• Ms. Weissman’s medical team considered PBRT to be her best option and did

not consider it to be experimental or investigational, [id. ¶¶ 63, 67, 73];

• Mr. Cole’s doctor believed PBRT would be more effective than IMRT and did

not consider it to be experimental, [id. ¶¶ 81, 92]; and

• Mr. Rizzuto’s doctors considered PBRT to be his best option and did not

consider it to be experimental, [id. ¶¶ 101–02, 105–06].

Taking these factual allegations together, see Hernandez-Cuevas, 723 F.3d at 103, drawing on its

experience and common sense, see Grajales, 682 F.3d at 44, and making all reasonable factual

inferences in Plaintiffs’ favor, see Gilbert, 915 F.3d at 80, the Court concludes that Plaintiffs

have plausibly alleged that PBRT is not subject to either of the two asserted exclusions.

As to the Experimental Exclusion, based on the factual allegations, the Court can

reasonably infer that PBRT, at least insofar as it is used to treat Plaintiffs’ specific conditions,

was not being reviewed by an institutional review board or the subject of an ongoing clinical trial

because if either were pending, Plaintiffs’ doctors specifically, and the medical community more

generally, would not have characterized PBRT as safe.

As to the unproven services exclusion, the Court can reasonably infer that PBRT, at least

to the extent it is used to treat Plaintiffs’ conditions, is effective because otherwise Plaintiffs’

doctors would not have recommended it to their patients and renowned medical organizations

and cancer treatment centers would not trumpet its effectiveness and recommend its use.

Whether the exclusions are, in fact, applicable is a question for a later day but because Plaintiffs’

factual allegations allow a reasonable inference that the PBRT is not barred by either exception,

they have put forth enough to survive a motion to dismiss.4 See Twombly, 550 U.S. at 570.

2. Plaintiffs Have Adequately Alleged that the Denial Was Arbitrary and

Capricious

Defendants argue that Plaintiffs have failed to plausibly allege that the benefit

determinations at issue were arbitrary and capricious. [ECF No. 47 at 19–22; ECF No. 54 at

16–17]. Plaintiffs maintain that their allegations are sufficient at this stage. [ECF No. 50 at

18–20].

Plaintiffs specifically allege that UnitedHealthcare had discretion to interpret plans and

make benefit determinations, see [Am. Compl. ¶¶ 22, 24, 29, 33], and seem to concede that the

arbitrary and capricious standard is appropriate, see [ECF No. 50 at 18–20 (focusing on

sufficiency of factual allegations and not challenging Defendants’ statement of the proper

standard)]. Accordingly, the question before the Court is whether Plaintiffs have plausibly

alleged that UnitedHealthcare’s denial of their benefits was arbitrary and capricious.

Given Plaintiffs’ burden at the motion to dismiss stage, see supra, Section II, they have

alleged enough to withstand a motion to dismiss. Specifically, Plaintiffs allege the following

facts, among others:

• UnitedHealthcare covers PBRT for those younger than nineteen but not those

older than nineteen despite a lack of medical studies supporting such an

age-based distinction, [Am. Compl. ¶ 43];

4 Defendants argue that, at a minimum, the Court should “dismiss the Amended Complaint to the

extent Plaintiffs assert claims for coverage of PBRT for conditions other than cervical, prostate,

and brain cancer.” [ECF No. 47 at 18–19]. In essence, Defendants are seeking to limit the

putative class to those individuals with the particular types of cancer that Plaintiffs had. The

First Circuit has directed district courts to “exercise caution when striking class action

allegations based solely on the pleadings.” Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59

(1st Cir. 2013). Accordingly, Defendants’ arguments are better addressed during the class

certification process should Plaintiffs move for class certification in the future. See O’Leary v.

N.H. Boring, Inc., 176 F. Supp. 3d 4, 13 (D. Mass. 2016).

• The PBRT Policy is based on out-of-date scientific literature and is infrequently

updated, [id. ¶ 44];

• UnitedHealthcare issued the New PBRT Policy but did not cite any significant

clinical developments indicating why the policy was changed, [id. ¶ 46];

• UnitedHealthcare failed to address the information that Mr. Cole’s doctor

provided concerning PBRT’s safety and efficacy, [id. ¶ 93];

• UnitedHealthcare’s denial of Mr. Rizzuto’s request for pre-authorization was

ambiguous and unspecific, [id. ¶ 104];

• The medical directors who reviewed Mr. Rizzuto’s appeals were specialists in

family medicine and internal medicine, not oncology, [id. ¶¶ 107, 109]; and

• The individual handling Mr. Rizzuto’s appeal failed to discuss the evidence and

literature that Mrs. Rizzuto cited in her letter, [id. ¶ 115].

Taking these factual allegations together, see Hernandez-Cuevas, 723 F.3d at 103, drawing on its

experience and common sense, see Grajales, 682 F.3d at 44, and making all reasonable factual

inferences in Plaintiffs’ favor, see Gilbert, 915 F.3d at 80, the Court concludes that Plaintiffs

have plausibly alleged that Defendants acted arbitrarily and capriciously. Defendants emphasize

that Plaintiffs themselves allege that both UnitedHealthcare’s physicians and external review

organizations reviewed Plaintiffs’ requests, see [ECF No. 47 at 19–21], and note the fact that

portions of the PBRT Policy support UnitedHealthcare’s coverage determinations, see [id. at

21–22]. These allegations and facts, however, do not render Plaintiffs’ claim implausible as a

matter of law. Although the facts advanced by Defendants may carry the day at summary

judgment, the question before the Court now is not whether UnitedHealthcare’s coverage

determinations were, in fact, arbitrary and capricious, but rather whether Plaintiffs have alleged

facts sufficient to make out a plausible claim for relief. See Twombly, 550 U.S. at 570. They

have met that burden.

C. Available Relief

Defendants make two additional arguments regarding the relief that Plaintiffs seek. First,

they argue that the Court should dismiss Plaintiffs’ request for an accounting and disgorgement

of profits because Plaintiffs have failed to allege facts showing they are entitled to such relief.

[ECF No. 47 at 22–23; ECF No. 54 at 17–19]. Second, they argue that the Court should reject

Plaintiffs’ request for prospective injunctive relief because Plaintiffs have not alleged facts

showing that they have standing to seek prospective injunctive relief. [ECF No. 47 at 23–24;

ECF No. 54 at 19–21]. Plaintiffs maintain that the Court should not limit their potential relief at

this stage of the litigation and that ERISA explicitly gives plaintiffs a right to seek a court order

ensuring that a policy is applied correctly prospectively. [ECF No. 50 at 21–25].

With respect to accounting and disgorgement, as noted supra, Section III.A.1, on the

record before it, the Court cannot determine whether Plaintiffs’ remedy under § 1132(a)(1)(B)

would be adequate and, at this point in the proceedings, the Court is not prepared to foreclose the

availability of an accounting and/or disgorgement. See N.Y. State Psychiatric Ass’n, Inc., 798

F.3d 125, 134 (2d Cir. 2015) (reversing district court’s dismissal of § 1132(a)(3) claim and

noting that if plaintiff prevailed on remand, the district court should then determine whether

equitable relief is appropriate). Notwithstanding Defendants’ arguments to the contrary,

Plaintiffs have alleged more than just that their requests for pre-authorization for PBRT were

arbitrarily and capriciously denied. Rather, they have alleged that UnitedHealthcare has

developed and applied the PBRT Policy to broadly deny coverage for PBRT, even though it is

safe and effective, because it is more expensive than IMRT. [Am. Compl. ¶¶ 118–24]. If these

allegations are borne out, § 1132(a)(1)(B)’s remedy of repayment of benefits may turn out to be

inadequate, and it would therefore be premature to foreclose the possibility of equitable relief,

including an accounting and disgorgement, at this time. See Ehrman v. Standard Ins. Co., No.

06-cv-05454, 2007 WL 1288465, at *4–5 (N.D. Cal. May 2, 2007) (declining, at the motion to

dismiss stage, to foreclose the plaintiff from obtaining equitable relief, in addition to relief under

§ 1132(a)(1)(B), where he alleged that the defendant adopted a “biased claim practice” “designed

to increase [its] financial profitability”).

Further, even if Plaintiffs can ultimately prove only that UnitedHealthcare breached its

fiduciary duty by impermissibly denying their benefits, it is possible that relief under

§ 1132(a)(1)(B) would still be insufficient. In other words, it is conceivable that even past due

benefits, prejudgment interest, and attorneys’ fees may not put Plaintiffs in the position they

would have been in but for UnitedHealthcare’s alleged misconduct. See Mullin v. Scottsdale

Healthcare Corp. Long Term Disability Plan, No. 15-cv-01547, 2016 WL 107838, at *4 (D.

Ariz. Jan. 11, 2016) (noting that “retroactive reinstatement of benefits does not account for [all]

financial harms,” that it was “conceivable that past due benefits, prejudgment interest, and

attorneys’ fees w[ould] be inadequate to put [plaintiff] in the position she would have been in but

for [defendant]’s alleged fiduciary misconduct,” and that “at the pleading stage . . . without

factual development, the [c]ourt c[ould not] determine whether [plaintiff]’s financial harm

exceeds the relief available to her under § 1132(a)(1)(B)”). Accordingly, at this juncture, the

Court will not foreclose the possibility of an accounting and/or disgorgement under § 1132(a)(3).

With respect to prospective injunctive relief, the Court is similarly unprepared to restrict

Plaintiffs’ potential relief at the motion to dismiss stage. If Plaintiffs prevail, the parties can

dispute the availability of prospective injunctive relief. At this point, however, the Court

declines to speculate as to whether a given plaintiff’s cancer will recur and/or whether he or she

will be a plan participant in the future. Further, given that this is a putative class action and the

proposed class includes “[a]ll persons . . . whose requests for PBRT will be denied in the future,”

[Am. Compl. ¶ 126], the availability of prospective injunctive relief may not depend solely on

Ms. Weissman, Mr. Cole, and Mr. Rizzuto. Finally, the recent Supreme Court case upon which

Defendants rely, Thole v. U.S. Bank N.A., does not compel a different result. That case stands

for the proposition that plaintiffs lack standing where they “have no concrete stake in t[he]

lawsuit.” 140 S. Ct. 1615, 1619 (2020). Here, Plaintiffs have a concrete stake in this lawsuit,

and if they prevail, the Court can then decide whether the prospective injunction that Plaintiffs

seek is an available and appropriate remedy to redress their injury.

IV. CONCLUSION

Accordingly, for the reasons set forth above, Defendants’ motion to dismiss, [ECF No.

46], is DENIED.

SO ORDERED.

March 8, 2021 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE