Joshua Bachrach – A Defendant’s Perspective

Jonathan M. Feigenbaum – A Plaintiff’s Perspective

The late Senator Jacob Javits (Republican-New York), one of the main sponsors of the Employee Retirement Income Security Act of 1974 (“ERISA”) heralded the law as “the greatest development in the life of the American worker since Social Security.”

-The case law is all over the place.

-The quantity of discovery is judge- dependent.

- De novo determination or discretionary review may not make much difference.

I can find a case that says, “No discovery,” says Josh!.

“But I can show you a court order that says I get all the discovery I want,” says Jonathan

What do the Federal Rules of Civil Procedure say about discovery in ERISA cases?

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The Supreme Court explained the universality of the Federal Rules of Civil Procedure in New Hampshire Fire Ins. Co. v Scanlon, 362 U.S. 404 (1960).

Identify any other private party litigation, other than ERISA 502(a)(1)(B) cases, where the Article III Judge must defer to the decision of the defendant.

Is deference to the defendant Constitutional?

Plaintiff wants it and defendant doesn’t.

Pretty Basic Stuff.But Why???

Congress has not provided Article III courts with the statutory authority, nor the judicial resources, to engage in a full review of the motivations behind every plan administrator's discretionary decisions. To engage in such a review would usurp plan administrators' discretionary authority and move toward a costly system in which Article III courts conduct wholesale reevaluations of ERISA claims. Imposing onerous discovery before an ERISA claim can be resolved would undermine one of the primary goals of the ERISA program: providing “a method for workers and beneficiaries to resolve disputes over benefits inexpensively and expeditiously.” Perry v. Simplicity Eng'g, 900 F.2d 963, 967 (6th Cir.1990) (internal citation omitted).

Semien v. Life Ins. Co. of N. Am., 436 F.3d 805, 815 (7th Cir. 2006)

The prohibition of discovery effectuates ERISA's “primary” goal—the “inexpensive[ ] and expeditious[ ]” resolution of disputes. Id. at 966–67. [Citing to Perry v. Simplicity Eng'g, 900 F.2d 963 (6th Cir.1990)]

Mulligan v. Provident Life & Acc. Ins. Co., 271 F.R.D. 584, 588 (E.D. Tenn. 2011)

If lawyers drive-up the cost of providing benefits, employers will cease offering benefits.

As to all three taken together, we believe them outweighed by “Congress' desire to offer employees enhanced protection for their benefits.” Varity, supra, at 497, 116 S.Ct. 1065 (discussing “competing congressional purposes” in enacting ERISA).

Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114, 128 S. Ct. 2343, 2349, 171 L. Ed. 2d 299 (2008)

“With that in mind, courts are duty-bound to inquire into what steps a plan administrator has taken to insulate the decisionmaking process against the potentially pernicious effects of structural conflicts.”

Denmark v. Liberty Life Assur. Co. of Boston566 F.3d 1, 9 (1st Cir. 2009).

Additionally, testimony from the administrator during his deposition that he had never applied paragraph 9 of the “Other Income Benefits” section of the policy “to a claim that involved personal injury other than in the context of workers' compensation” tends to raise the eyebrows in respect to a conflict of interest analysis.

Baxter v. Sun Life Assur. Co. of CanadaSlip Copy, 2011 WL 2214661 (N.D.Ill.)at *10 (2011)

It gets worse. Dr. Pollack was asked whether physical therapy would prevent contractures. She said, “No.” Why not? “Because it is my belief that it is not an effective way to prevent contractures.” Where did this belief come from? “I cannot tell you exactly how I developed it because I haven't thought about it for a long time.”

Bedrick v. Travelers Ins. Co.93 F.3d 149,154 (4th Cir. 1996)

“The court disagrees. McGahey points out that Dr. McManama recommended denial of every long-term disability claim in the twenty-two cases that he reviewed for Harvard during the specified time period. Dr. Clayman recommended denial in 80 percent of the cases he reviewed (twenty-five of thirty-one).”

McGahey v. Harvard Univ. Flexible Benefits Plan, 685 F. Supp. 2d 168, 180 (D. Mass. 2009)

Identify any other private party litigation, other than ERISA 502(a)(1)(B) cases, where the Article III Judge must defer to the decision of the defendant.

Is deference to the defendant Constitutional?