D. Seth Holliday’s Success Stories
ERISA VICTORY AGAINST AETNA IN A MEDICAL BENEFITS CASE
In Williams v. Aetna Life Ins. Co., 13-CV-241-KKC, 2014 WL 5063660 (E.D. Ky. Oct. 8, 2014), the Plaintiff, Ms. Williams, had been a premature infant who spent 9 ? weeks in the neonatal intensive care unit and was then at home on a ventilator until about 20 months of age. Ms. Williams subsequently developed problems from the respiratory syncytial virus (“RSV”) at age 2 and now, at 24 years old, suffers from selective antibody deficiency. Selective antibody deficiency is a condition where Ms. Williams’ immune system fails to make antibodies appropriately. Selective antibody deficiency is treated with intravenous immunoglobulin or “IVIG” therapy. IVIG treatment for selective antibody deficiency is medically necessary, in accordance with generally accepted standards, clinically appropriate, and not primarily for the convenience of the patient. Without IVIG therapy, this lack of antibody replacement results in chronic respiratory infections, including pneumococcus or bronchiectasis, the former of which can kill a person within 6 hours, the latter of which leads to continued lung deterioration and death generally 20 years or so younger than the anticipated life span of an individual. IVIG therapy is given intravenously. Ms. Williams has a central veinous access device which her physicians use to infuse the IVIG into her body. The process takes about 3 hours. Ms. Williams’ IVIG treatment cost about $5,000 per infusion, which occurs on a monthly basis. Fortunately for Ms. Williams, her parents were able to bear the approximately $60,000.00 yearly cost of the treatment during the litigation or she would have died years ago.
Prior to Aetna’s involvement in this matter, Ms. Williams had health coverage under the National Rural Electric Cooperative Association (“NRECA”) through its self-funded Group Benefits Program. When Ms. Williams developed selective antibody deficiency she made a claim for intravenous immunoglobulin (“IVIG”) treatment which had begun on March 12, 2009. On July 23, 2009, and again on December 16, 2009, the NRECA denied coverage because it concluded IVIG was not medically necessary. The NRECA had initially misdiagnosed Ms. Williams with common variable immune deficiency instead of selective antibody deficiency. I filed suit for Ms. Williams against the NRECA on July 10, 2010, and the matter eventually resolved through settlement. Indeed, the NRECA never seriously disputed the medical necessity of IVIG treatment, as one of their own medical consultants eventually admitted in a November 3, 2009, report to the NRECA that “[t]he lack of antibody response to pneumococcal vaccination raises the possibility of selective antibody deficiency which is an acceptable indication for IVIG.” Notably, the evidence submitted by Ms. Williams to the NRECA was also submitted to Aetna.
Immediately after the settlement with NRECA, Ms. Williams’ health coverage with Aetna began on January 1, 2011, as the employer of her father switched from a self-funded plan to one insured by Aetna. Unfortunately, Aetna’s claims management was even worse than the NRECA’s. Aetna failed to gather or examine relevant evidence. Initially, Aetna did not review Ms. Williams’ laboratory data that it had in its possession since July 13, 2011, until July 3, 2013, which was at least a cause of Aetna’s admitted misdiagnoses of Ms. Williams for almost two years. Additionally, Aetna failed to review most of Plaintiffs’ submitted evidence until July 3, 2013, almost two-and-a-half years after Ms. Williams’ January 4, 2011, initial claim. Second, Aetna’s acknowledgement that it changed its decision rationale between its initial and final decision was established. Indeed, Aetna specifically admitted that all previous denial rational prior to its final denial of July 8, 2013, concerned its position that intravenous immunoglobulin (“IVIG”) therapy was experimental and investigational and had nothing to do with periodic trial discontinuation of IVIG therapy, the rationale used in its final denial. Finally, Aetna based its decision on a selective review of the evidence, refusing to timely credit the key opinions of Ms. Williams’ treating physicians or rebut their opinions in any fashion whatsoever. Aetna did not dispute those physicians’ opinions that circumstances were not appropriate to decrease or stop the IVIG therapy because Ms. Williams’ lung function would deteriorate, she could die within six hours of an overwhelming pneumococcal infection or she could develop bronchiectasis, which is not curable, and would cause continued deterioration of her lungs at a relatively rapid rate such that she would die by the age of 50 or so. Indeed, not only did Aetna fail to rebut the evidence submitted by Ms. Williams, it eventually agreed with it.
Accordingly, Chief Judge Karen Caldwell found that Aetna’s refusal to pay for Plaintiff’s intravenous immunoglobulin treatment for her selective immunodeficiency condition was arbitrary and capricious because, among other things, Aetna changed its rationale for denying coverage from “experimental or investigational” to “failure to conduct a trial discontinuation of treatment” and Aetna did not meaningfully investigate the claim. It was a complete victory for our client.
A Win in Federal Court for A Social Security Disability Claimant
I have represented 2,000+ claimants at Social Security administrative hearings, in Georgia, Tennessee, and Alabama, with a very high win rate. In 2008, I became a Certified Specialist in Social Security Disability Law by the National Board of Social Security Disability Advocacy. However, in that same year, October 23, 2008, I lost what I considered to be a strong Social Security case. The Appeals Council denied the request for review, and the ALJ’s decision became the final decision of the Commissioner of Social Security on March 27, 2009.
Mr. Owens had a myoclonic movement disorder. It was a clinical diagnosis and had no objective test. A clinical diagnosis is based on the treating physician’s observations of the patient as well as her medical expertise; there is nothing inappropriate about a diagnosis of this nature. It was my impression that the Commissioner had improperly substituted his judgment for that of the physicians.
The federal court could overturn the decision only if it found that it was not based on substantial evidence or that there was an error of law. There was no option for de novo review. The Court could reverse the Commissioner’s decision, but usually the case would be sent back for a new hearing. Generally, the Court upheld the Commissioner’s decisions.
My professional judgment and analysis of the case led me to appeal the case at the District Court, Owens v. Astrue, No. 2:09-2239-JDT (W.D. Tenn.). I argued it was remarkable the ALJ would conclude Mr. Owens was not disabled when every medical opinion in the record concluded that he had significant functional limitations. Secondly, it was remarkable the ALJ concluded that Mr. Owens could do some type of sedentary work when the only vocational report in the record concluded that he did not have this capacity. Finally, it was remarkable the ALJ based his decision largely on Mr. Owens’s credibility when each opining physician and the vocational expert found Mr. Owens’ history to be credible.
Although credibility determinations are given substantial deference on appeal, my appraisal of this case was that the ALJ’s unfavorable decision could not withstand even minimal scrutiny and should be reversed as serious error. On February 26, 2010, District Court Judge James D. Todd agreed. Judge Todd found that the record established that Mr. Owens was entitled to benefits without additional fact-finding. He remanded the case back to the Commissioner for an award. It was a powerful statement by the Judge and a complete victory for my client.
An ERISA Win Involving A Pre-existing Condition
My client, let’s call him “Mr. Jones”, purchased disability insurance in early 2006. Not long after, he experienced a fall and suffered a brain injury. At the hospital, his blood alcohol level measured .205 g/dl: two-and-a-half times the .08 threshold for a DUI. Because Mr. Jones’s insurance went into effect less than 2 months earlier, the carrier conducted a review of the policy, looking for preexisting conditions. They learned he had been treated for alcoholism during the relevant timeframe, and denied the claim on the basis that his alcoholism disqualified him. Mr. Jones came to my firm after the carrier had made its final decision. The case looked dire.
As lead attorney, I decided to pursue the case, No. 1:07-cv-303 (E.D. Tenn.), despite its risks and expenses the plaintiff could not recoup if the case was lost. I did this because, after reviewing the file, I felt the link the carrier drew between the pre-existing condition and ultimate disability was too tenuous. I did not believe alcoholism alone could meet the carrier’s burden of proof to exclude Mr. Jones’s injury from coverage.
My decision was based on the age-old concept of proximate cause, as illustrated in the famous Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928). In Palsgraf, Chief Justice Cardozo explained an action for negligence would not lie where the causal link between purported negligence and harm was so tenuous as to not be rationally connected. During Mr. Jones’s case, I argued, Palsgraf-style, that the connection between Mr. Jones’s pre-existing alcoholism and his brain damage was not rationally connected.
The carrier said Mr. Jones’s inability to perform his occupation because of brain damage stemmed from a subdural hematoma, caused by a fall. The actual cause of the fall was unknown, but the carrier surmised it happened because Mr. Jones was intoxicated, which happened because he had been drinking alcohol, which resulted from Mr. Jones’s alcoholism—a preexisting condition. It took five causal steps to make this connection.
My client’s injury was not the “proximate” result of alcoholism — it was the result of an accidental fall, the exact cause of which was unknown. In 2009, a federal court agreed, ruling that although it was “possible that Mr. Jones’s history of alcohol consumption ‘contributed’ in some way to his ultimate severe head injury, [it was] not a close enough connection to exclude under ERISA’s requirements pertaining to preexisting condition exclusions.”
The carrier appealed, but eventually the case settled. My decision to proceed with this case was a good one, and provided compensation for Mr. Jones, whose brain injury disabled him from earning a living.
Improving ERISA Law for Plaintiffs
As an ERISA attorney, I noticed decision makers were taking contradictory positions about the impact on long-term disability (LTD) claims of Social Security Administration findings of disability. The issue is a complicated, multifaceted one. When an ERISA case of mine, Myers v. Prudential, went to trial I had an occasion to thoroughly review, research and brief the matter. The very issue was at the heart of my case as well.
In my memorandum, I explained that Prudential had hired a representative to help my client obtain Social Security disability benefits. But when Social Security made its award, the carrier turned around and rejected my client’s LTD claim. It refused to be bound by Social Security’s finding of disability.
In fact, many ERISA insurers make Long-Term Disability (LTD) claimants file for Social Security disability, because their plans reduce benefits payments by the amount of Social Security obtained. This saves them money. And then, they refuse to be bound by Social Security’s finding and reject LTD claims. Insurance companies do this because they can. Under the law, an ERISA decision-maker is not automatically bound by what Social Security says.
In my brief, I explained that as the ERISA decision-maker, the court was not free to ignore the decision of the Social Security Administration. The fact that a person has been found disabled by SSA is a factor a court should consider, in the context of the record as a whole. The case law supported this position.
Citing several more cases as precedent, my brief explained that as a guiding principle, the doctrine of “judicial estoppel” applies when a litigant is “playing fast and loose with the courts and when intentional self-contradiction is being used as a means of obtaining unfair advantage.” This is precisely what had happened with my client. The court understood, and held that the insurer’s actions were an abuse of discretion. A Ruling and Recommendation in favor of my client followed. The case then quickly resolved before the District Court took further action.
But winning wasn’t enough; I needed to educate the bar. I published an article in my firm’s newsletter about the practices of ERISA insurers and about developments in applicable law. The article was distributed to members of the plaintiff’s ERISA bar nationwide and a more in-depth article was then published in the Tennessee Bar Association newsletter.
Entrenching ERISA Law Favorable to Plaintiffs
ERISA cases are very technical and hard for plaintiffs to win. Small advances in the law need to be entrenched as soon as possible before insurers find a court somewhere else to reach a contrary conclusion. In 2008 I was lead counsel in a case involving a critical technical rule: under precedent, plaintiffs seeking conflict of interest (COI) discovery in the Eastern District of Tennessee needed to make an “initial showing” that discovery was not just a fishing expedition. My partner and I persuaded the court to rule that all that was needed was to allege in the complaint that COI existed. Then we needed to spread the word.
In 2009, I saw an opportunity to entrench this principal of law in a second case in which I was lead counsel. Our U.S. District Court Judge had a reputation for a keen legal mind; her decisions carried great weight with the judiciary as a whole. As in my 2008 case, defense counsel refused to cooperate with plaintiff in conflict of interest discovery. Although our judge was in the Middle District and my earlier case was a Magistrate ruling in the Eastern District, I briefed the court on my earlier case, and urged the judge to adopt my interpretation of the law. The judge ruled in our favor without oral argument.
The District Judge, on the last page of the decision, adopted my analysis nearly verbatim: “To deny a plaintiff the opportunity to conduct limited discovery on the bias issue until she has made an initial threshold showing essentially handcuffs the plaintiff, who… will rarely have access to any evidence beyond a bare allegation of bias, in the absence of discovery.”
Following the Middle District’s decision in my case, my analysis has taken further hold in the Middle District. At least one similar decision has since come out of the District, Paulette Philips v. Guardian Life Insurance Company of America, Case No.: 3-08-0660, which essentially adopted my case as the paradigm for ERISA discovery disputes in the District. I was the lead attorney and briefed the matter in that subsequent case, which the court again decided without finding it necessary to hold oral argument.
Cleaning Up An ERISA Mess – and Winning!
Ms. Norberry hired an attorney who had little or no experience in ERISA disability cases. The attorney filed suit in federal court on December 21, 2007, for short-term and long-term disability benefits. The attorney erred by not exhausting his client’s administrative remedies and did not understand the subtleties of ERISA. The defense asked the court for judgment on this basis and won, after full briefing, on December 10, 2008. The Court agreed that administrative remedies had not been exhausted as required by statute. Ms. Norberry fired her attorney and called me.
When the case came to me, I needed to solve the problem created by the untimely lawsuit in federal court. Reviewing the file, I noted that Ms. Norberry’s claim for short-term disability benefits had been fully reviewed by the insurer, which had issued a denial; however, her long-term disability (LTD) claim had never been reviewed by the carrier. Consequently, if the carrier had been on notice of the LTD claim and had failed to take action, then Ms. Norberry’s had not failed to exhaust her administrative remedies and the claim might be reinstated. On the other hand, the carrier might have a valid defense that the claim was filed too late, and was outside the statute of limitations. The crucial problem would be showing that the carrier had been on notice of the LTD claim and that therefore, the exhaustion issue could be overcome.
After reading the policy and case file it became clear that the insurance carrier (1) should have reviewed Ms. Norberry’s short-term disability claim for conversion to a long-term disability claim as early as November 8, 2005; (2) it had actual notice of the LTD claim since at least March 27, 2006, if not earlier; and (3) it had behaved in such a manner that Ms. Norberry was under a reasonable impression and had relied on the fact that the carrier was actively processing the LTD claim. Ms. Norberry had articulated this belief in writing without contradiction by the insurance carrier.
I wrote a letter to the insurance carrier outlining my position and summarizing the evidence. At the same time I worked up both the medical and vocational aspect of the case and submitted expert opinions to the insurance carrier. When there was no meaningful response from the insurance carrier, I filed suit in District Court on October 28, 2009, Norberry v. Life Ins Co of North America, No. 3:09-1034 (M.D. Tenn.). A few months later, the insurance carrier decided to award her full disability benefits, and Mrs. Norberry’s problem was resolved.
Making Great ERISA Law for Plaintiffs
Typically the federal court’s review in ERISA cases is limited to the “administrative record.” However, in the Eastern and Middle Districts of Tennessee, if a defendant had an inherent conflict of interest that impacted the benefit decision, then a plaintiff is entitled to some degree of discovery related to this issue. However, in 2011, in a case entitled Freshour v. Sun Life, No. 2-10-cv-153 (E.D. Tenn.), the defendant took a different tact and filed a Motion for Protective order requesting that the Court “enter an Order forbidding the discovery” and “relieving it from any obligation to respond to Plaintiff’s discovery requests.”
Sun Life put forth a novel argument, asserting that “conflict analysis – and, by extension, discovery for that purpose – may only apply in a close case, in effect serving as a ‘tie-breaker.’” Sun Life argued that if its claim determination “is so clearly reasonable” then “conflict discovery is substantively irrelevant” and plaintiff must present a “colorable procedural challenge” before obtaining conflict discovery.
The entitlement to limited discovery had grown out of a line of cases in which I was lead counsel. I reasoned that plaintiff’s discovery requests were virtually identical to those approved in one of my cases, Kinsler v. Lincoln Nat’l Life Ins. Co., F. Supp. 2d, 2009 WL 2996723 (M.D. Tenn. Sept. 21, 2009), and were similar to those compelled in another, Phillips v. Guardian Life Insurance Company of America, Slip op. *1-3, Docket No. 3:08-660 (M.D. Tenn. Nov. 23, 2009). I pointed out there was no requirement that, before discovery, a plaintiff must argue the substantive merits and show a court that a defendant’s benefit determination is “not clearly reasonable.” I reasoned that it made no sense to force a court to review the substantive merits of a case before it allowed discovery. That would be putting the cart before the horse.
The Magistrate essentially agreed with my reasoning; my approach would better facilitate the prompt and inexpensive resolution of disputes. The defendant appealed to the District Court, which upheld the Magistrate’s ruling.
Awards for Volunteer Work at the Chattanooga Community Kitchen.
In 2004, I was volunteering for two organizations that provide disadvantaged individuals access to legal services, Legal Aid of East Tennessee (legal services for the poor) and Chattanooga Cares (services to those who are HIV positive). I learned about the work of a third organization, The Chattanooga Community Kitchen, a freestanding social service agency which provides aid to the homeless. I met with the director and several case managers to determine whether their organization provided any type of organized access to legal counsel. They did not. I offered my services.
The Community Kitchen’s clientele are homeless individuals and families. The services the organization provides include transitional housing, employment and job training, and help for victims of domestic violence. They also work with another agency to provide health care, substance abuse treatment and mental health services. Yet Community Kitchen’s clients also needed access to legal services for a variety of problems related to domestic violence, mental illness, substance abuse, and criminal charges, among others. Many, due to their impairments or other situations, could not be counted on to come to an office at a specified time.
I began meeting with individuals, couples and sometimes parents and children at The Community Kitchen every Friday afternoon, staying for as long as it took to talk to everyone there who needed to consult a lawyer. This usually took an hour or two. I soon realized that many of these individuals could qualify for assistance at Legal Aid of East Tennessee. I set up a referral system with Legal Aid (I was already volunteering there and later joined its Pro Bono Committee), which gave me more time to work with clients with less access to justice.
Since 2004, I have met with hundreds of individuals and spent hundreds of hours helping them resolve their criminal, domestic, financial, and disability issues on a pro bono basis. Many of these individuals are severely mentally ill and/or potentially violent. Many come to the homeless shelter after serving time in prison or in a mental institution. My years of service were recently recognized when I received the Pro Bono Excellence Award on May 20, 2010, and again in 2012, from Legal Aid of East Tennessee. My service in this capacity has led me to broaden my community involvement and I now have served on the Board of Directors for Hospice of Chattanooga (Chair of Governance Committee, Secretary of Executive Committee), and also have served on the Pro Bono Committee for Legal Aid of East Tennessee.
Helping a Community Member Get Back on Her Feet.
In 2009, I met a woman at the Community Kitchen who was homeless and living with her child in a shelter. She was a former prostitute and HIV positive. She had been receiving Social Security Disability benefits but her benefits had been cut off once the Administration learned there was an outstanding warrant against her for a felony in Florida. This was an issue she had been avoiding, which complicated matters; in the interim, she had experienced a number of behavioral setbacks mitigating against a successful outcome. She sorely needed someone to facilitate a successful resolution of the matter with the State’s Attorney in Florida.
The matter required diplomacy and cooperation with the Florida State’s Attorney. I called to learn what the State’s Attorney needed to write a letter on behalf of my client. They required a letter from her, describing what she had done with her life since her offense date of June 24, 1992. They would then evaluate.
I spoke with my client in person and on the phone numerous times to elicit her story. This was extremely difficult, because of her drug history and emotional status. Also, she was in denial and would not own up to the role she played in creating the sad circumstances of her life. Finally I learned enough from my client to write a letter on her behalf.
The letter explained that at the time of her conviction, she was placed on Community Supervision for five years. She admitted being addicted to crack cocaine and running away to Chattanooga because she foolishly thought a geographic change would help her change inside. She admitted emotional instability and a mood disorder, took responsibility for her criminal actions and even to some degree for her abusive relationships. She acknowledged difficulties staying sober.
However, she also told a different story, one of potential hope and progress. I helped her explain that she had recently gotten psychiatric help for her bipolar disorder and was taking medication, receiving treatment for her HIV on a regular basis and taking this medication too, and participating in and sometimes leading an exercise group. Also, she had completed an intensive outpatient drug therapy program at the Bradford Group, where she still attended as an alumna, and was also enrolled in the Help II Program at the Chattanooga Community Kitchen which offered her counseling and workshops.
The client approved and signed the letter on May 21, 2009. The State’s Attorney reviewed it and responded with his own. When the Social Security Administration received the letter from Florida, my client’s disability benefits were reinstated.