In ERISA litigation, one of the first things the plaintiff's counsel will hear when discussing discovery with defense counsel is that there doesn't need to be any discovery at all. This is suggested because the case must be decided on the administrative record, which the defendant contends it has a right to compose before the lawsuit was filed. Well…not exactly.

In a case involving an accidental death benefit, Duncan v. Minnesota Life, 2018 WL 306609 (S.D. Ohio 2018), a treating doctor and a coroner found that Mr. McVay died due to intercranial bleed secondary to trauma from a fall. Minnesota Life, however, hired its own doctor who contended that the death was not caused by an accident but rather a medical condition. In other words, they determined that the fall was not the reason for Mr. McVay's death.

Mr. McVay's beneficiaries sought, through litigation, discovery regarding Minnesota Life's conflict of interest because it was paying the benefit out of its own assets. Also, they sought information regarding its medical director's possible conflict in the situation and discovery regarding procedural defects. In trying to defeat any discovery, Minnesota Life argued that the beneficiaries had to do more than merely allege a procedural defect to the decision. They contended that the discovery sought was, therefore, nothing more than a “fishing expedition.”

The plaintiffs stood their ground and argued that Minnesota Life's review only covered the evidence it found favorable to its decision not to pay the claim. It ignored the bulk of the medical evidence including the opinions of a treating physician, a post-mortem examination, and the death certificate. Minnesota Life countered that, under ERISA law, it did not have to credit the opinions of the treating doctors and the post-mortem examiner. It could obtain its own medical opinions.

The court weighed in and noted that it is arbitrary to disregard reliable medical evidence. Minnesota Life's doctor did not mention or address the treating doctor's opinions. Minnesota Life only relied on its doctor's opinion and failed to address why the other doctor's opinions were unreliable or wrong. This amounted to a “malignancy” with the claim procedure of Minnesota Life.

The plaintiff was granted discovery to further investigate the conflict of interest and the medical director's possible conflict of interest. If there is a problem with the process, the court would have the information then to note the malignancy needing to be removed.

We have seen this criticism of unfair claim reviews before. In Helms v. Gen. Dynamics Corp., 222 Fed.Appx. 821, 833 (11th Cir.2007), the Court described “Aetna's review [in this case] was malignant at worst, and arbitrary at best.”

In ERISA cases, the discovery course is a bit different than your ordinary civil case. Sometimes it can be a fishing expedition, and sometimes, it can be a malignant tumor extraction. This is why it is crucial to refer long-term disability, short-term disability, life insurance and pension/retirements claims under ERISA to experienced ERISA attorneys.